strict statutory safeguards against abuse of the jurisdiction arising
out of it, the diversity of citizenship clause is one of the more
prolific sources of federal jurisdiction. In Hepburn _v._ Ellzey,[507]
Chief Justice Marshall, speaking for the Court, confined the meaning of
the word "State," as used in the Constitution, to "the members of the
American confederacy" and ruled that a citizen of the District of
Columbia could not sue a citizen of Virginia on the basis of diversity
of citizenship. In the course of his brief opinion Marshall owned that
it was "extraordinary that the courts of the United States, which are
open to aliens, and to the citizens of every State in the union should
be closed" to the residents of the District, but the situation, he
indicated, was "a subject for legislative, not for judicial
consideration."[508] The same restrictive rule was later extended to
citizens of territories of the United States.[509]
Extension of Jurisdiction by the Act of 1940
Whether Chief Justice Marshall had in mind a constitutional amendment or
an act of Congress when he spoke of legislative consideration is not
clear. At any rate, not until 1940 did Congress enact a statute to
confer on federal district courts jurisdiction of civil actions
(involving no federal question) "between citizens of different States,
or citizens of the District of Columbia, the Territory of Hawaii, or
Alaska and any State or Territory."[510] In National Mutual Insurance
Co. _v._ Tidewater Transfer Co.,[511] this act was sustained by five
judges, but for widely different reasons. Justice Jackson, in an opinion
in which Justices Black and Burton joined, was for adhering to the rule
that the District of Columbia is not a State, but held the act to be
valid nevertheless because of the exclusive and plenary power of
Congress to legislate for the District and its broad powers under the
necessary and proper clause.[512] Justice Rutledge, in a concurring
opinion, in which Justice Murphy joined, agreed that the act was valid
and asserted that the Ellzey case should be overruled.[513] Chief
Justice Vinson in a dissent in which Justice Douglas concurred[514] and
Justice Frankfurter in a dissent in which Justice Reed joined[515]
thought the act invalid and would have adhered to the rule in the Ellzey
case. The net result is that the Ellzey case still stands insofar as it
holds that the District of Columbia is not a State, but that under
Congressional enactment citizens of the District may now sue citizens of
States in the absence of a federal question, on the basis of no statable
constitutional principle, but through the grace of what Justice
Frankfurter called "conflicting minorities in combination."[516]
CITIZENSHIP, NATURAL PERSONS
For purposes of diversity jurisdiction State citizenship is determined
by domicile or residence, for the determination of which various tests
have been stated: removal to a State, acquiring real estate there, and
paying taxes;[517] residence in a State for a considerable time;[518]
and removal to a State with the intent of making it one's home for an
indefinite period of time.[519] Where citizenship is dependent on
intention, acts may disclose it more satisfactorily than
declarations.[520] The fact that removal to another State is motivated
solely by a desire to acquire citizenship for diversity purposes does
not oust the federal courts of jurisdiction so long as the new
residence is indefinite or the intention to reside there indefinitely is
shown.[521] But a mere temporary change of domicile for the purpose of
suing in a federal court is not sufficient to effectuate a change in
citizenship.[522] Exercise of the right of suffrage is a conclusive test
of citizenship in a State, and the acquisition of the right to vote
without exercising it is sufficient to establish citizenship.[523]
CITIZENSHIP, CORPORATIONS
In Bank of United States _v._ Deveaux,[524] Chief Justice Marshall
declared: "That invisible, intangible, and artificial being, that mere
legal entity, a corporation aggregate, is certainly not a citizen; and
consequently cannot sue or be sued in the courts of the United States,
unless the rights of the members, in this respect, can be exercised in
their corporate name." He proceeded then to look beyond the corporate
entity and hold that the bank could sue under the diversity provisions
of the Constitution and the Judiciary Act of 1789 because the members of
the bank as a corporation were citizens of one State and Deveaux was a
citizen of another. This holding was reaffirmed a generation later, in
Commercial and Railroad Bank of Vicksburg _v._ Slocomb,[525] at a time
when corporations were coming to play a more important role in the
national economy. The same rule, combined with the rule that in a
diversity proceeding all the persons on one side of a suit must be
citizens of different States from all persons on the other side,[526]
could in the course of time have closed the federal courts in diversity
cases to the larger corporations having stockholders in all or most of
the States.
If such corporations were to have the benefits of diversity
jurisdiction, either the Deveaux or the Strawbridge rule would have to
yield. By 1844, only four years after the Slocomb Case, the interests of
corporations in docketing cases in the federal courts as citizens of
different States appeared more important to the Supreme Court than the
weight to be attached to precedents, even those set by John Marshall,
and in Louisville, Cincinnati, and Charleston R. Co. _v._ Letson,[527]
both the Deveaux and Slocomb cases were overruled. After elaborate
arguments by counsel, the Court, speaking through Justice Wayne, held
that "a corporation created by and doing business in a particular State,
is to be deemed to all intents and purposes as a person, although an
artificial person, an inhabitant of the same State, for the purposes of
its incorporation, capable of being treated as a citizen of that State,
as much as a natural person."[528]
In the Letson Case the emphasis is upon the place of incorporation of a
joint stock company as something completely separate from the
citizenship of its members. In succeeding cases, however, this fiction
of corporate personality has undergone modifications so that a
corporation, though still a citizen of the State where it is chartered,
is such by virtue of the jurisdictional fiction that all the
stockholders are citizens of the State which by its laws created the
corporation.[529] This presumption is conclusive and irrebuttable and
resembles in many ways the English jurisdictional fiction that for
providing remedies for wrongs done in the Mediterranean "the Island of
Minorca was at London, in the Parish of St. Mary Le Bow in the Ward of
Cheap."[530] This fiction creates a logical anomaly, which the Letson
rule had avoided, in those cases in which a stockholder of one State
sues a corporation chartered in another State. Although all stockholders
are conclusively presumed to be citizens of the State where the
corporation is chartered, an individual stockholder from a different
State may nevertheless aver his actual citizenship so as to maintain a
diversity suit against the corporation.[531] These rulings lead to some
extraordinary results, as John Chipman Gray has indicated: "The Federal
courts take cognizance of a suit by a stockholder who is a citizen, say,
of Kentucky, against the corporation in which he owns stock, which has
been incorporated, say, by Ohio. Since he is a stockholder of an Ohio
corporation, the court conclusively presumes that he is a citizen of
Ohio, but if he were a citizen of Ohio, he could not sue an Ohio
corporation in the Federal courts. Therefore the court considers that he
is and he is not at the same time a citizen of Ohio, and it would have
no jurisdiction unless it considered that he both was and was not at the
same time a citizen both of Ohio and Kentucky."[532]
The Black and White Taxicab Case
These fictions of corporate citizenship make it easy for corporations to
go into the federal courts on matters of law that are purely local in
nature, and they have availed themselves of the opportunity to the full.
For a time the Supreme Court tended to look askance at collusory
incorporations and the creation of dummy corporations for purposes of
getting cases into the federal courts,[533] but as a result of the
Kentucky Taxicab Case,[534] decided in 1928, the limitation of collusion
lost much of its force. Here the Black and White company, a Kentucky
corporation, dissolved itself and obtained a charter as a Tennessee
corporation in order to get the benefit of a federal rule which would
condone an exclusive contract with a railroad to park its cabs in and
around a station whereas the State rule forbade such contracts. The only
change made was of the State of incorporation. The name of the company,
its officers, and shareholders, and the location of its business all
remained the same. Yet no collusion was found, and the company received
the benefit of the federal rule--a measure of salvation by being born
again in Tennessee. The odd result in the Taxicab Case, whereby citizens
of Kentucky could conduct business there contrary to State law with the
sanction of the Supreme Court of the United States, did not stem solely
from the rule that the citizenship of a corporation is determined by the
State of its incorporation, but also from this rule combined with the
rule of Swift _v._ Tyson,[535] another by-product of diversity
jurisdiction.
THE LAW APPLIED IN DIVERSITY CASES: SWIFT _v._ TYSON
Section 34 of the Judiciary Act of 1789 provided that in diversity cases
at common law the laws of the several States should be the rules of
decision in the United States courts. However, in Swift _v._ Tyson[536]
the Supreme Court refused to apply this section on the ground that it
did not extend to contracts or instruments of a commercial nature, the
interpretation of which therefore ought to be according to "the general
principles and doctrines of jurisprudence"; and while the decisions of
State courts on such subjects were entitled to and would receive
attention and respect, they could not be conclusive or binding upon the
federal courts.[537]
Extension of the Tyson Case
For ninety-six years the Court followed this opinion, which the other
Justices saw only the evening before it was delivered, and which invoked
a precedent of Lord Mansfield on the law of the sea and an epigram of
Cicero on the law of nature.[538] Later decisions expanded the concept
of matters of a commercial nature so that the scope of the Tyson rule
was greatly extended.[539] In many instances the State courts followed
their own rules of decision even when contrary to the federal rules, so
that Justice Story's attempt at uniformity in matters of a commercial
nature paradoxically led to a greater diversity and to the mischief in
many instances of two conflicting rules of law in the same State, with
the outcome of suits dependent upon whether the case was docketed in a
State or a federal court. Simultaneously, the Supreme Court was holding
under the Tyson rule that the federal courts were not bound by decisions
of State courts interpreting State constitutions[540] or State
statutes.[541]
The Tyson Rule Protested
Moreover, decisions extending the scope of the Tyson rule were
frequently rendered by a divided Court over the strong protests of
dissenters.[542] In Baltimore and Ohio R. Co. _v._ Baugh,[543] which
further projected the Tyson rule into the law of torts in disregard of
State law, Justice Field wrote a sharp dissent in which he indicated an
opinion that the Supreme Court's disregard of State court decisions was
unconstitutional. Such disregard, nevertheless, was further aggravated
in Kuhn _v._ Fairmont Coal Co.,[544] where the Court held that in
construing a contract in a case involving real estate and mining law a
federal court was not bound by a West Virginia decision touching the
same subject. This evoked a provocative dissent from Justice Holmes, who
later wrote one of his more famous dissents in the Black and White
Taxicab Company case,[545] in which he asserted emphatically that the
Court's extensions of the Tyson rule were unconstitutional.[546]
ERIE RAILROAD CO. _v._ TOMPKINS; TYSON OVERRULED
Increasing criticism of the Tyson rule led to a restriction of it in
Mutual Life Ins. Co. _v._ Johnson,[547] where the Court chose to apply
Virginia decisions rather than exercise its independent judgment on the
ground that the case was "balanced with doubt."[548] The federal
judicial power was subordinated to what Justice Cardozo called "a benign
and prudent comity."[549] Four years later, and without further
preparation other than a change in two of the Justices, the Court
overturned Swift _v._ Tyson and its judicial progeny in Erie Railroad
Co. _v._ Tompkins,[550] in an opinion by Justice Brandeis which is
remarkable in a number of ways. In the first place, it reversed a
ninety-six year old precedent which counsel had not questioned;
secondly, for the first and only time in American constitutional
history, it held action of the Supreme Court itself to have been
unconstitutional, to wit, action taken by it in reliance on its
interpretation of the 34th section of the Judiciary Act of 1789, a
question which also was not before the Court; and thirdly, it completely
ignored the power of Congress under the commerce clause, as well as its
power to prescribe rules of decision for the federal courts in the
cases enumerated in article III.
Like the Fairmont Coal and Taxicab cases, the Tompkins Case presented
the possibility of a head-on conflict between State and federal rules of
decision. Tompkins was seriously injured by a passing freight train
while he was walking along the railroad's right of way in Pennsylvania.
As a citizen of Pennsylvania, Tompkins could have sued in that State,
but he could also have sued in the federal district court in
Pennsylvania, or in New York because the railroad was incorporated in
the latter State. He elected to sue in the federal court for the
southern district of New York, where he obtained a verdict for $30,000
after the trial judge had ruled that the applicable law did not preclude
recovery. The circuit court of appeals affirmed the judgment because it
thought it unnecessary to consider whether the law of Pennsylvania
precluded recovery, inasmuch as the question was one of general law to
be decided by the federal courts in the exercise of their independent
judgment. Citing Warren's discovery that Swift _v._ Tyson was an
erroneous interpretation of the Judiciary Act of 1789, criticism of the
Tyson doctrine both on and off the bench, and the political and social
defects of the rule in working discriminations against citizens of a
State in favor of noncitizens and in producing injustice and confusion,
Justice Brandeis declared: "If only a question of statutory construction
were involved, we should not be prepared to abandon a doctrine so widely
* * * [followed for] nearly a century. But the unconstitutionality of
the course pursued has now been made clear and compels us to do so.
* * * There is, [he continued], no federal general common law. Congress
has no power to declare substantive rules of common law applicable in a
State whether they be local in their nature or 'general,' be they
commercial law or a part of the law of torts. And no clause in the
Constitution purports to confer such a power upon the federal
courts."[551] After quoting Justice Field and Justice Holmes on the
unconstitutionality of the Tyson rule, Justice Brandeis made it clear
that the Court was not invalidating Sec. 34 of the Federal Judiciary Act
of 1789, but was merely declaring that the Supreme Court and the lower
federal courts had, in their application of it, "invaded rights which
* * * are reserved by the Constitution to the several States."[552]
Justice Butler, joined by Justice McReynolds, concurred in the result,
because in his view Tompkins was not entitled to damages under general
law, but he deprecated the reversal of Swift _v._ Tyson. He also
objected to the decision of the constitutional issue as
unnecessary.[553] Justice Reed likewise concurred, but thought it
questionable to raise the constitutional issue. "If the opinion, [said
he], commits this Court to the position that the Congress is without
power to declare what rules of substantive law shall govern the federal
courts, that conclusion also seems questionable."[554]
Extension of the Tompkins Rule
Since 1938 the federal courts have been most assiduous in following the
decisions of the State courts in diversity cases. The decisions
followed, moreover, include not only those of the highest State courts,
but those also of intermediate courts. In West _v._ American Telephone
and Telegraph Co.[555] the Supreme Court held that a decision of an Ohio
county court of appeals which the Supreme Court of the State had
declined to review was binding on the lower federal courts regardless of
the desirability of the rule of the decision or of the belief that the
highest court of the State might establish a different rule in future
litigation. In Fidelity Union Trust Co. _v._ Field[556] the Court went
even farther and ruled that the lower courts were bound to follow the
decisions of two chancery courts in New Jersey although there had been
no appeal to the highest State court, and obviously other New Jersey
courts were not bound by the decisions of two vice-chancellors. The
anomaly of this decision was partially removed in King _v._ Order of
United Commercial Travelers,[557] where the Court held that the federal
courts were not bound by the decision of a court of first instance of
South Carolina, which was the only decision applicable to the
interpretation of the insurance policy in dispute. Nor is this the whole
story. In the event of a State Supreme Court's reversal of its earlier
decisions the federal courts are bound by the latest decision. Hence a
judgment of a federal district court, correctly applying State law as
interpreted by the State's highest court, must be reversed on appeal if
the State court in the meantime has reversed its earlier rulings and
adopted a contrary interpretation. Though aware of possible
complications from this rule, the Court insisted that "until such time
as a case is no longer _sub judice_, the duty rests upon the federal
courts to apply the Rules of Decision statute in accordance with the
then controlling decision of the highest state court."[558]
Although the Rules of Decision Act[559] requires the federal courts to
follow State decisions only in civil cases, the application of the
Tompkins rule has been extended to suits in equity.[560] In Guaranty
Trust Co. _v._ York,[561] the Court held that when a statute of
limitations barred recovery in a State court, a federal court sitting in
equity could not entertain the suit because of diversity of citizenship.
This ruling was based on the express premise that "a federal court
adjudicating a State-created right solely because of the diversity of
citizenship of the parties is for that purpose, in effect, only another
court of the State, * * * "[562] It was held to be immaterial,
therefore, whether statutes of limitations were designated as
substantive or procedural. The Tompkins Case, it was said, was not an
endeavor to formulate scientific legal terminology. "In essence, the
intent of that decision was to insure that, in all cases where a federal
court is exercising jurisdiction solely because of the diversity of
citizenship of the parties, the outcome of the litigation in the federal
court should be substantially the same, so far as legal rules determine
the outcome of a litigation, as it would be if tried in a State
court."[563]
Controversies Between Citizens of the Same State Claiming Lands Under
Grants of Different States
This clause was not in the first draft of the Constitution, but was
added without objection.[564] Undoubtedly the motivation for this
extension of the judicial power was the existence of boundary disputes
affecting ten States at the time the Philadelphia Convention met. With
the Northwest Ordinance of 1787, the ultimate settlement of boundary
disputes between States, and the passing of land grants by States, this
clause, never productive of many cases, has become obsolete.[565]
Controversies Between a State, or the Citizens Thereof, and Foreign
States, Citizens or Subjects
The scope of this jurisdiction has been limited both by judicial
decisions and the Eleventh Amendment. By judicial application of the Law
of Nations a foreign State is immune from suit in the federal courts
without its consent,[566] an immunity which extends to suits brought by
States of the American Union.[567] Conversely, the Eleventh Amendment
has been construed to bar suits by foreign States against a State of the
American Union.[568] Consequently, the jurisdiction conferred by this
clause comprehends only suits brought by a State against citizens or
subjects of foreign States, by foreign States against American citizens,
citizens of a State against the citizens or subjects of a foreign State,
and by aliens against citizens of a State.
SUITS BY FOREIGN STATES
The privilege of a recognized foreign State to sue in the courts of a
foreign State upon the principle of comity is recognized by both
International Law and American Constitutional Law.[569] To deny a
sovereign this privilege "would manifest a want of comity and friendly
feeling."[570] Although national sovereignty is continuous, a suit in
behalf of a national sovereign can be maintained in the courts of the
United States only by a government which has been recognized by the
political branches of our own government as the authorized government of
the foreign State.[571] Once a foreign government avails itself of the
privilege of suing in the courts of the United States, it subjects
itself to the procedure and rules of decision governing those courts and
accepts whatever liabilities the Court may decide to be a reasonable
incident of bringing the suit.[572] Also, certain of the benefits
extending to the domestic sovereign do not extend to a foreign sovereign
suing in the courts of the United States. Thus a foreign sovereign does
not receive the benefit of the rule which exempts the United States and
its member States from the operation of the statute of limitations,
because considerations of public policy back of the rule are regarded as
absent.[573]
Indian Tribes
Within the terms of article III, an Indian tribe is not a foreign State
and hence cannot sue in the courts of the United States. This rule was
applied in the case of Cherokee Nation _v._ Georgia,[574] where Chief
Justice Marshall conceded that the Cherokee Nation was a State, but not
a foreign State, being a part of the United States and dependent upon
it. Other passages of the opinion specify the elements essential to a
foreign State for purposes of jurisdiction, such as sovereignty and
independence.
NARROW CONSTRUCTION OF THE JURISDICTION
As in cases of diversity jurisdiction, suits brought to the federal
courts under this category must clearly state in the record the nature
of the parties. As early as 1809 the Supreme Court ruled that a federal
court could not take jurisdiction of a cause where the defendants were
described in the record as "late of the district of Maryland," but were
not designated as citizens of Maryland, and plaintiffs were described as
aliens and subjects of the United Kingdom.[575] The meticulous care
manifested in this case appeared twenty years later when the Court
narrowly construed section 11 of the Judiciary Act of 1789, vesting the
federal courts with jurisdiction where an alien was a party, in order to
keep it within the limits of this clause. The judicial power was further
held not to extend to private suits in which an alien is a party, unless
a citizen is the adverse party.[576] This interpretation was extended
in 1870 by a holding that if there is more than one plaintiff or
defendant, each plaintiff or defendant must be competent to sue or
liable to suit.[577] These rules, however, do not preclude a suit
between citizens of the same State if the plaintiffs are merely nominal
parties and are suing on behalf of an alien.[578]
Clause 2. In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme Court
shall have original Jurisdiction. In all the other Cases before
mentioned, the Supreme Court shall have appellate Jurisdiction, both as
to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.
The Original Jurisdiction of the Supreme Court
AN AUTONOMOUS JURISDICTION
Acting on the assumption that its existence is derived directly from the
Constitution, the Supreme Court has held since 1792 that its original
jurisdiction flows directly from the Constitution and is therefore
self-executing without further action by the Congress. In the famous
case of Chisholm _v._ Georgia[579] the Supreme Court entertained an
action of assumpsit against Georgia by a citizen of another State.
Although the 13th section of the Judiciary Act of 1789 invested the
Supreme Court with original jurisdiction in suits between a State and
citizens of another State, it did not authorize actions of assumpsit in
such cases, nor did it prescribe forms of process for the Court in the
exercise of original jurisdiction. Over the dissent of Justice Iredell,
the Court in opinions by Chief Justice Jay and Justices Blair, Wilson,
and Cushing, sustained its jurisdiction and its power, in the absence of
Congressional enactments, to provide forms of process and rules of
procedure. So strong were the States' rights sentiments of the times
that Georgia refused to appear as a party litigant, and other States
were so disturbed that the Eleventh Amendment was proposed forthwith and
ratified. This amendment, however, did not affect the direct flow of
original jurisdiction to the Court, which continued to take jurisdiction
of cases to which a State was party plaintiff and of suits between
States without specific provision by Congress for forms of process. By
1861 Chief Justice Taney could enunciate with confidence, after a review
of the precedents, that in all cases where original jurisdiction is
given by the Constitution, the Supreme Court has authority "to exercise
it without further act of Congress to regulate its powers or confer
jurisdiction, and that the Court may regulate and mould the process it
uses in such manner as in its judgment will best promote the purposes of
justice."[580]
CANNOT BE ENLARGED; MARBURY _v._ MADISON
Since the original jurisdiction is derived directly from the
Constitution, it follows logically that Congress can neither restrict it
nor, as was held in the great case of Marbury _v._ Madison,[581] enlarge
it. In holding void the 13th section of the Judiciary Act of 1789, which
was interpreted as giving the Court power to issue a writ of mandamus in
an original proceeding, Chief Justice Marshall declared that "a negative
or exclusive sense" had to be given to the affirmative enunciation of
the cases to which original jurisdiction extends.[582] While the rule
that the Supreme Court is vested with original jurisdiction by the
Constitution and that this jurisdiction cannot be extended or restricted
deprives Congress of any power to define it, it allows a considerable
latitude of interpretation to the Court itself. In some cases, as in
Missouri _v._ Holland,[583] the Court has manifested a tendency toward a
liberal construction of original jurisdiction; in others, as in
Massachusetts _v._ Mellon,[584] it has placed a narrow construction upon
the grant through the device of a restrictive interpretation of cases
and controversies; and in still other cases, as in California _v._
Southern Pacific Co.,[585] it has stated that its original jurisdiction
"is limited and manifestly to be sparingly exercised, and should not be
expanded by construction."
CONCURRENT JURISDICTION OF THE LOWER FEDERAL COURTS
Although Congress can neither enlarge nor restrict the original
jurisdiction of the Supreme Court, it may vest concurrent jurisdiction
in the lower federal courts in cases over which the Supreme Court has
original jurisdiction.[586] Thus among the grounds given for the
decision in Wisconsin _v._ Pelican Insurance Co.,[587] that the Court
had no original jurisdiction of an action by a State to enforce a
judgment for a pecuniary penalty awarded by one of its own courts, was
the provision of the 13th section of the Judiciary Act of 1789[588] that
"the Supreme Court shall have exclusive jurisdiction of controversies of
a civil nature, where a State is a party, except between a State and its
citizens; and except also between a State and citizens of other States,
or aliens, in which latter case it shall have original but not exclusive
jurisdiction." Speaking of that act with particular reference to this
section, Justice Gray declared that it "was passed by the first Congress
assembled under the Constitution, many of whose members had taken part
in framing that instrument, and is contemporaneous and weighty evidence
of its true meaning."[589] In cases affecting consuls, moreover, the
original jurisdiction of the Supreme Court is shared concurrently with
State courts unless Congress by positive action makes such jurisdiction
exclusive.[590]
The Appellate Jurisdiction of the Supreme Court
SUBJECT TO LIMITATION BY CONGRESS
Unlike its original jurisdiction, the appellate jurisdiction of the
Supreme Court is subject to control by Congress in the exercise of the
broadest discretion. Although the provisions of article III seem,
superficially at least, to imply that its appellate jurisdiction would
flow directly from the Constitution until Congress should by positive
enactment make exceptions to it, rulings of the Court since 1796
establish the contrary rule. Consequently, before the Supreme Court can
exercise appellate jurisdiction, an act of Congress must have bestowed
it, and affirmative bestowals of jurisdiction are interpreted as
exclusive in nature so as to constitute an exception to all other cases.
This rule was first applied in Wiscart _v._ Dauchy[591] where the Court
held that in the absence of a statute prescribing a rule for appellate
proceedings, the Court lacked jurisdiction. It was further stated that
if a rule were prescribed, the Court could not depart from it. Fourteen
years later Chief Justice Marshall observed for the Court that its
appellate jurisdiction is derived from the Constitution, but proceeded
nevertheless to hold that an affirmative bestowal of appellate
jurisdiction by Congress, which made no express exceptions to it,
implied a denial of all others.[592]
The McCardle Case
The power of Congress to make exceptions to the court's appellate
jurisdiction has thus become, in effect, a plenary power to bestow,
withhold, and withdraw appellate jurisdiction, even to the point of its
abolition. And this power extends to the withdrawal of appellate
jurisdiction even in pending cases. In the notable case of Ex parte
McCardle,[593] a Mississippi newspaper editor who was being held in
custody by the military authorities acting under the authority of the
Reconstruction Acts filed a petition for a writ of _habeas corpus_ in
the circuit court for Southern Mississippi. He alleged unlawful
restraint and challenged the validity to the Reconstruction statutes.
The writ was issued, but after a hearing the prisoner was remanded to
the custody of the military authorities. McCardle then appealed to the
Supreme Court which denied a motion to dismiss the appeal, heard
arguments on the merits of the case, and took it under advisement.
Before a conference could be held, Congress, fearful of a test of the
Reconstruction Acts, enacted a statute withdrawing appellate
jurisdiction from the Court in certain _habeas corpus_ proceedings.[594]
The Court then proceeded to dismiss the appeal for want of
jurisdiction. Chief Justice Chase, speaking for the Court said:
"Without jurisdiction the Court cannot proceed at all in any cause.
Jurisdiction is the power to declare the law and when it ceases to
exist, the only function remaining to the Court is that of announcing
the fact and dismissing the cause."[595]
Although the McCardle Case goes to the ultimate in sustaining
Congressional power over the court's appellate jurisdiction and although
it was born of the stresses and tensions of the Reconstruction period,
it has been frequently reaffirmed and approved.[596] The result is to
vest an unrestrained discretion in Congress to curtail and even abolish
the appellate jurisdiction of the Supreme Court, and to prescribe the
manner and forms in which it may be exercised. This principle is well
expressed in The "Francis Wright"[597] where the Court sustained the
validity of an act of Congress which limited the court's review in
admiralty cases to questions of law appearing on the record. A portion
of the opinion is worthy of quotation: "Authority to limit the
jurisdiction necessarily carries with it authority to limit the use of
the jurisdiction. Not only may whole classes of cases be kept out of the
jurisdiction altogether, but particular classes of questions may be
subjected to reexamination and review, while others are not. To our
minds it is no more unconstitutional to provide that issues of fact
shall not be retried in any case, than that neither issues of law nor
fact shall be retried in cases where the value of the matter in dispute
is less than $5,000. The general power to regulate implies the power to
regulate in all things. The whole of a civil appeal may be given, or a
part. The constitutional requirements are all satisfied if one
opportunity is had for the trial of all parts of a case. Everything
beyond that is a matter of legislative discretion."[598]
The Power of Congress To Regulate the Jurisdiction of the Lower Federal
Courts
MARTIN _v._ HUNTER'S LESSEE
The power of Congress to vest, withdraw, and regulate the jurisdiction
of the lower federal courts is derived from the power to create
tribunals under article I, the necessary and proper clause, and the
clause in article III, vesting the judicial power in the Supreme Court
and such inferior courts as "the Congress may from time to time ordain
and establish." Balancing these provisions, however, are the phrases in
article III to the effect that the judicial power "shall be vested" in
courts and "shall extend" to nine classes of cases and controversies and
the question of what is the force of the word "shall." In Martin _v._
Hunter's Lessee,[599] Justice Story declared obiter that it was
imperative upon Congress to create inferior federal courts and vest in
them all the jurisdiction they were capable of receiving. This dictum
was criticized by Justice Johnson in his dissent, in which he contended
that the word "shall" was used "in the future sense," and had "nothing
imperative in it."[600] And for that matter in another portion of his
opinion Justice Story expressly recognized that Congress may create
inferior courts and "parcel out such jurisdiction among such courts,
from time to time at their own pleasure";[601] and in his Commentaries
he took a broad view of the power of Congress to regulate
jurisdiction.[602]
PLENARY POWER OF CONGRESS OVER JURISDICTION
Neither legislative construction nor judicial interpretation has
sustained Justice Story's position in Martin _v._ Hunter's Lessee. The
Judiciary Act of 1789, which was a contemporaneous interpretation of the
Constitution by the Congress, rests on the assumption of a broad
discretion on the part of Congress to create courts and to grant
jurisdiction to and withhold it from them. This act conferred original
jurisdiction upon the district and circuit courts in certain cases, but
by no means all they were capable of receiving. Thus suits at the common
law to which the United States was a party were limited by the amount
in controversy. Except for offenses against the United States, seizures
and forfeitures made under the impost, navigation, or trade laws of the
United States, and suits by aliens under International Law or treaties,
that whole group of cases involving the Constitution, laws, and treaties
of the United States was withheld from the jurisdiction of the district
and circuit courts,[603] with the result that original jurisdiction in
these cases was exercised by the State courts subject to appeal to the
Supreme Court under section 25. Jurisdiction was vested in the district
courts over admiralty and maritime matters and in the circuit courts
over suits between citizens of different States where the amount
exceeded $500, or suits to which an alien was a party.[604] The act of
1789 empowered the courts to issue writs, to require parties to produce
testimony, to punish contempts, to make rules, and to grant stays of
execution.[605] Finally, equity jurisdiction was limited to those cases
where a "plain, adequate, and complete remedy" could not be had at
law.[606]
This care for detail in conferring jurisdiction upon the inferior courts
and vesting them with ancillary powers in order to render such
jurisdiction effective is of the utmost significance in the later
development of the law pertaining to Congressional regulation of
jurisdiction, inasmuch as it demonstrates conclusively that a majority
of the members of the first Congress regarded positive action on the
part of Congress to be necessary before jurisdiction and judicial powers
could be exercised by courts of its own creation. Ten years later this
practical construction of article III was accepted by the Supreme Court
in Turner _v._ Bank of North America.[607] The case involved an attempt
to recover on a promissory note in a diversity case contrary to Sec. 11
of the act of 1789 which forbade diversity suits involving assignments
unless the suit was brought before the assignment was made. Counsel for
the bank argued that the circuit courts were not inferior courts and
that the grant of judicial power by the Constitution was a direct grant
of jurisdiction. This argument evoked questions from Chief Justice
Ellsworth and the following statement from Justice Chase: "The notion
has been frequently entertained, that the federal courts derive their
power immediately from the Constitution; but the political truth is,
that the judicial power (except in a few specified instances) belongs to
Congress. If Congress has given the power to this Court, we possess it,
not otherwise; and if Congress has not given the power to us, or to any
other court, it still remains at the legislative disposal. Besides,
Congress is not bound, and it would, perhaps, be inexpedient, to enlarge
the jurisdiction of the federal courts, to every subject, in every
form, which the Constitution might warrant."[608] The Court applied Sec.
11 of the Judiciary Act and ruled that the circuit court lacked
jurisdiction.
Eight years later Chief Justice Marshall in distinguishing between
common law and statutory courts declared that "courts which are created
by written law, and whose jurisdiction is defined by written law, cannot
transcend that jurisdiction."[609] This rule was reaffirmed in the
famous case of United States _v._ Hudson and Goodwin[610] on the
assumption that the power of Congress to create inferior courts
necessarily implies "the power to limit the jurisdiction of those Courts
to particular objects."[611] After pointing to the original jurisdiction
which flows immediately from the Constitution, Justice Johnson asserted:
"All other Courts created by the general Government possess no
jurisdiction but what is given them by the power that creates them, and
can be vested with none but what the power ceded to the general
Government will authorize them to confer."[612] To the same affect is
Rhode Island _v._ Massachusetts[613] where Justice Baldwin declared that
"the distribution and appropriate exercise of the judicial power must
therefore be made by laws passed by Congress and cannot be assumed by
any other department * * *"
A more sweeping assertion of Congressional power over jurisdiction was
made by the Supreme Court in Cary _v._ Curtis,[614] which bears more
directly upon the issue than some of the earlier cases. Here counsel had
argued that a statute which made final the decisions of the Secretary of
the Treasury in tax disputes was unconstitutional in that it deprived
the federal courts of the judicial power vested in them by the
Constitution. In reply to this argument the Court speaking through
Justice Daniel declared: "The judicial power of the United States * * *
is (except in enumerated instances, applicable exclusively to this
court) dependent for its distribution and organization, and for the
modes of its exercise, entirely upon the action of Congress, who possess
the sole power of creating the tribunals (inferior to the Supreme Court)
* * * and of investing them with jurisdiction, either limited,
concurrent, or exclusive, and of withholding jurisdiction from them in
the exact degrees and character which to Congress may seem proper for
the public good." Continuing, Justice Daniel said: "It follows then
that courts created by statute, must look to the statute as the warrant
for their authority; certainly they cannot go beyond the statute, and
assert an authority with which they may not be invested by it, or which
may clearly be denied to them."[615]
The principles of Cary _v._ Curtis were reiterated five years later in
Sheldon _v._ Sill[616] where the validity of Sec. 11 of the Judiciary Act
of 1789 was directly questioned. The assignee of a negotiable instrument
filed a suit in a circuit court even though no diversity of citizenship
existed as between the original parties to the mortgage. The circuit
court entertained jurisdiction in spite of the prohibition against such
suits in Sec. 11 and ordered a sale of the property in question. On appeal
to the Supreme Court, counsel for the assignee contended that Sec. 11 was
void because the right of a citizen of any State to sue citizens of
another in the federal courts flowed directly from article III and
Congress could not restrict that right. The Supreme Court unanimously
rejected these contentions and held that since the Constitution had not
established the inferior courts or distributed to them their respective
powers, and since Congress had the authority to establish such courts,
it could define their jurisdiction and withhold from any court of its
own creation jurisdiction of any of the enumerated cases and
controversies in article III.[617] Sheldon _v._ Sill has been cited,
quoted, and reaffirmed many times.[618] Its effect and that of the cases
following it is that as regards the jurisdiction of the lower federal
courts two elements are necessary to confer jurisdiction: first, the
Constitution must have given the courts the capacity to receive it, and
second, an act of Congress must have conferred it. The manner in which
the inferior federal courts acquire jurisdiction, its character, the
mode of its exercise, and the objects of its operation are remitted
without check or limitation to the wisdom of the legislature.[619]
JUDICIAL POWER UNDER THE EMERGENCY PRICE CONTROL ACT
The plenary power of Congress to withhold and restrict jurisdiction was
given renewed vitality by the Emergency Price Control Act of 1942[620]
and the cases arising therefrom. Fearful that the price control program
might be effectively nullified by injunctions, Congress provided for a
special court and special procedures for contesting the validity of
price regulations. In Lockerty _v._ Phillips[621] the Supreme Court
sustained the power of Congress to confine equity jurisdiction, to
restrain enforcement of the act to the specially created Emergency Court
of Appeals, with appeal to the Supreme Court. The Court went much
farther than this in Yakus _v._ United States,[622] and held that the
provision of the act conferring on the Emergency Court of Appeals and
the Supreme Court exclusive jurisdiction to determine the validity of
any regulation or order, and providing that no court should have
jurisdiction or power to consider the validity of any regulation,
precluded the plea of invalidity of such a regulation as a defense to
its violation in a criminal proceeding in a district court. Although
Justice Rutledge protested in his dissent that this provision of the act
conferred jurisdiction on the district courts from which essential
elements of the judicial power had been abstracted,[623] Chief Justice
Stone declared for the majority that the provision presented no novel
constitutional issue.
LEGISLATIVE CONTROL OVER WRITS
The authority of Congress to regulate the jurisdiction of the lower
federal courts includes that of controlling the power of the courts to
issue writs in cases where they have jurisdiction and to regulate other
ancillary powers generally.[624] Among some of the more notable
restrictions in this regard are the limitations on the power of courts
to issue injunctions, particularly in the field of taxation and labor
disputes. By the act of March 2, 1867,[625] Congress provided that "no
suit for the purpose of restraining the assessment or collection of any
tax shall be maintained in any court." There have never been any
constitutional doubts concerning this provision, which was strictly
applied for many years[626] until 1916 when the Supreme Court began to
make exceptions[627] which in the later cases[628] made the provision so
inefficacious that by October, 1935, more than 1600 suits had been filed
to restrain the collection of processing taxes under the Agricultural
Adjustment Act.[629] None of these cases, however, raises any issue
other than that of statutory interpretation, and since 1936 the Court
has interpreted the exceptions to the statute somewhat more
strictly.[630]
Injunctions in Labor Disputes; the Norris-LaGuardia Act
The Norris-LaGuardia Act of 1932[631] is significant for its
restrictions on the powers of the federal courts to issue injunctions in
labor disputes in the form of requirements for hearings followed by
findings that unlawful acts are threatened and will be committed unless
restrained, or if already committed will be continued; that substantial
injury to the property of complainants will ensue; that as to the relief
granted greater injury will be inflicted upon complainants by denying
relief than will be inflicted on defendants by granting it; that the
complainants have no adequate remedy at law; and, finally, that the
public officials charged with the protection of complainants' property
are either unable or unwilling to do so. This act has been scrupulously
applied by the Supreme Court, which has implicitly sustained its
constitutionality by construing its restrictions liberally[632] in every
case except United States _v._ United Mine Workers,[633] where it was
held that the statute did not apply to suits brought by the United
States to enjoin a strike in the coal industry while the Government
technically was operating the mines.
JUDICIAL POWER EQUATED WITH DUE PROCESS OF LAW
Although the cases point to a plenary power in Congress to withhold
jurisdiction from the inferior courts and to withdraw it at any time
after it has been conferred, even as applied to pending cases, there are
a few cases in addition to Martin _v._ Hunter's Lessee[634] which
slightly qualify the cumulative effect of this impressive array of
precedents. As early as 1856, the Supreme Court in Murray _v._ Hoboken
Land and Improvement Co.[635] distinguished between matters of private
right which from their nature were the subject of a suit at the common
law, equity, or admiralty and cannot be withdrawn from judicial
cognizance and those matters of public right which, though susceptible
of judicial determination, did not require it and which might or might
not be brought within judicial cognizance. Seventy-seven years later the
Court elaborated this distinction in Crowell _v._ Benson,[636] which
involved the finality to be accorded administrative findings of
jurisdictional facts in compensation cases. In holding that an employer
was entitled to a trial _de novo_ of the constitutional jurisdictional
facts of the matter of the employer-employee relationship and of the
occurrence of the injury in interstate commerce, Chief Justice Hughes,
speaking for the majority fused the due process clause of Amendment V
and article III, but emphasized that the issue ultimately was "rather a
question of the appropriate maintenance of the Federal judicial power,"
and "whether the Congress may substitute for constitutional courts, in
which the judicial power of the United States is vested, an
administrative agency * * * for the final determination of the existence
of the facts upon which the enforcement of the constitutional rights of
the citizen depend." To do so, contended the Chief Justice, "would be
to sap the judicial power as it exists under the Federal Constitution
and to establish a government of a bureaucratic character alien to our
system, wherever constitutional rights depend, as not infrequently they
do depend, upon the facts, and finality as to facts becomes in effect
finality in law."[637]
JUDICIAL _VERSUS_ NONJUDICIAL FUNCTIONS
The power of Congress to confer jurisdiction on the lower federal courts
is qualified by the rule that before Congress can vest jurisdiction in
the inferior courts, they must have the capacity to receive it. The
capacity of the lower judiciary to receive jurisdiction is defined in
the enumeration of cases and controversies in article III. Consequently
in vesting courts with jurisdiction, Congress cannot go beyond this
enumeration.[638] It follows from the rule that constitutional courts
can perform only judicial functions that Congress, in vesting courts
with jurisdiction, cannot impose upon them nonjudicial duties such as
administering pensions,[639] deciding issues subject to later executive
or legislative action,[640] rendering advisory opinions, or opinions
which are not final and conclusive upon the parties,[641] or taking
jurisdiction of matters from which any essential element of the judicial
power has been abstracted.[642] To be sure, Congress may clothe some
matters of an administrative nature with the mantle of a case or
controversy and thereby make it a matter of judicial cognizance, as it
has done with naturalization proceedings,[643] the administration of
certain laws relating to the expulsion of aliens,[644] the limited
administration of funds received from the Government of Mexico to
compensate American citizens for claims against that government,[645]
and, of course, the traditional administration of bankrupt enterprises
through the medium of a receiver.
Federal-State Court Relations
PROBLEMS RAISED BY CONCURRENCY
The American Federal System with its dual system of courts, exercising
concurrent jurisdiction in a number of classes of cases, presents
numerous possibilities of inter-court conflicts and interference.
Subject to Congressional enactments to the contrary, the State courts
have concurrent jurisdiction over all the classes of cases and
controversies enumerated in article III except suits between States,
those to which the United States is a party, those to which a foreign
state is a party, and cases of admiralty and maritime jurisdiction. Even
in admiralty cases the State courts, though unable to exercise any
portion of admiralty or maritime jurisdiction by delegation or
otherwise,[646] may have a concurrent jurisdiction when the same issues
assume the form of a case at common law.[647] In addition to conflicts
arising out of concurrent jurisdiction, relations between federal and
State courts are exposed to other frictions, such as injunctions in one
jurisdiction restraining judicial processes in another, the use of the
writ of _habeas corpus_ by a court of concurrent jurisdiction to release
persons in custody of another, and the refusal by State courts to comply
with orders of the Supreme Court. The relations between federal and
State courts are governed in part by Constitutional Law with respect to
State court interference with the federal courts and State court refusal
to comply with the judgments of federal tribunals, by statutes as
regards interference by federal courts with those of the States, and by
self-imposed rules of comity applied for the avoidance of unseemly
conflicts.
DISOBEDIENCE OF SUPREME COURT ORDERS BY STATE COURTS
The refusal of State courts to make returns on writs of errors issued by
the Supreme Court has already been noted in connection with the
disobedience of the Virginia courts in Martin _v._ Hunter's Lessee[648]
and Cohens _v._ Virginia[649] and in that of the Wisconsin court in
Ableman _v._ Booth.[650] More spectacular disobedience to federal
authority arose out of the Cherokee Indian case involving actions of
Georgia and its courts. In the first of these the Supreme Court had
issued a writ of error to the Georgia Supreme Court to review the
conviction of Corn Tassel for the murder of another Cherokee Indian. The
writ was served, but before a hearing could be held Corn Tassel was
executed on the day originally set for punishment contrary to the
federal law that a writ of error superseded sentence until the appeal
was decided. This action ensued as a result of the legislature's
approval of the governor's policy that he would permit no interference
with Georgia's courts by orders of the Supreme Court and would resist by
force any attempt to enforce them with all the forces at his
command.[651]
Worcester _v._ Georgia
Two years later Georgia renewed its defiance of the Supreme Court in
Worcester _v._ Georgia[652] which involved the conviction of two
missionaries for residing among the Indians without a license. The
Supreme Court reversed the conviction on the ground that the State had
no jurisdiction over the Cherokee reservations and ordered Worcester's
discharge in a special mandate to the superior court of Gwinnett County.
The State court ignored the mandate and once again the governor of the
State announced that he would meet such usurpation by the Supreme Court
with determined resistance. Consequently, Worcester and Butler remained
in jail until they agreed to abandon further efforts for their discharge
by federal authority in the form of a writ of error, whereupon the
governor pardoned them on the condition that they leave the State.
CONFLICTS OF JURISDICTION: COMITY
Aside from these more dramatic assertions of independence of federal
courts, State court interference with the federal judiciary has occurred
for the most part in conflicts of jurisdiction which affect only the
lower federal courts as courts of concurrent jurisdiction and in
attempts to release persons in federal custody. To the extent that this
phase of federal-state relations is not governed by statute or the
supremacy clause of article VI, it is governed by comity, a self-imposed
rule of judicial morality whereby independent tribunals of concurrent or
coordinate jurisdiction exercise a mutual restraint in order to prevent
interference with each other and to avoid collisions of authority.
Although the Court on one occasion has stated that the principle of
comity is not a rule of law but "one of practice, convenience, and
expediency"[653] which persuades, but does not command, it has also
declared that in the American Federal System it has come to have "a
higher sanction than the utility which comes from concord" and has been
converted into a principle "of right and of law, and therefore of
necessity."[654] As developed and applied by the Supreme Court the rule
of comity is exemplified in three classes of cases: First, those in
which a court has acquired jurisdiction of the _res_ or the possession
of property and another court interferes with that jurisdiction or
possession; second, those in which a court has acquired jurisdiction or
custody of the person and another interferes with such jurisdiction or
custody, most frequently by discharges from custody in _habeas corpus_
proceedings; and, third, those in which injunctions are used to stay
proceedings in another court or to enjoin official action before the
courts of proper jurisdiction have had an opportunity to adjudicate the
issue.
JURISDICTION OF THE _RES_
As applied by the Supreme Court in cases involving concurrent
jurisdiction the principle of comity means that when the jurisdiction of
a court and the right of a plaintiff to prosecute a suit therein have
attached and when a court has acquired constructive possession of
property, such jurisdiction cannot be taken away or obstructed by
proceedings in another court, nor can the possession of the property be
disturbed by proceedings in another court; and the court which has first
acquired jurisdiction of the cause or the possession of the _res_ has
exclusive jurisdiction to hear and determine the case and all
controversies relating thereto, provided that the subject matter of the
suit, the remedies sought, and the parties to it are the same, and
provided further that it is not necessary for the federal courts to
exercise jurisdiction in order to enforce the supremacy of the
Constitution and laws of the United States.[655]
STATE INTERFERENCE BY INJUNCTION WITH FEDERAL JURISDICTION
It has long been settled as a general rule that State courts have no
power to enjoin proceedings or judgments of the federal courts.[656] In
United States ex rel. Riggs _v._ Johnson County[657] this rule was
attributed to no paramount jurisdiction of the federal courts, but
rather to the complete independence of the State and federal courts in
their spheres of action. Like many of the rules governing federal-state
court relations, this rule is not absolute, as shown by a case arising
in Pennsylvania. Two surviving trustees had filed an account for
themselves and a deceased trustee in a court of common pleas.
Thereafter, two of the five beneficiaries sued the two trustees and the
deceased trustee in a federal district court, charging mismanagement and
praying for an accounting and restitution and removal of the trustees.
The Supreme Court held that the State court upon the filing of the
account acquired jurisdiction over the trust _quasi in rem_ exclusively
and therefore sustained the State court's injunction restraining the
parties from further proceeding in the federal court while
simultaneously holding that the district court could not enjoin the
parties from proceeding in the State court.[658] The power of a State
court to enjoin parties from proceeding in a federal court obviously
does not include that of enjoining a federal court.
FEDERAL INTERFERENCE BY INJUNCTION WITH STATE JURISDICTION
The discretion of the federal courts to enjoin proceedings in State
courts has not been left exclusively to doctrines of comity, for since
1793 the federal courts have been prohibited by statute from restraining
proceedings in State courts.[659] Initially this statute was applied
with strict literalness in condemning attempts by the lower federal
courts to enter exceptions to it,[660] but gradually the Supreme Court
began to interpret the provision as not prohibitive of all injunctions.
First, it has been held that an injunction will lie against proceedings
in a State court to protect the lawfully acquired jurisdiction of a
federal court against impairment or defeat.[661] This exception is
notably applicable to cases where the federal court has taken possession
of property which it may protect by injunction from interference by
State courts.[662] Second, in order to prevent irreparable damages to
persons and property the federal courts may restrain the legal officers
of a State from taking proceedings in State courts to enforce State
legislation alleged to be unconstitutional.[663] Nor does the
prohibition of Sec. 265 of the Judicial Code [28 U.S.C.A. Sec. 2283]
prevent injunctions restraining the execution of judgments in State
courts obtained by fraud,[664] the restraint of proceedings in State
courts in cases which have been removed to the federal courts,[665] nor,
until lately, to proceedings in State courts to relitigate issues
previously adjudicated and finally settled by decrees of a federal
court.[666]
In Toucey _v._ New York Life Insurance Co.,[667] Justice Frankfurter,
as spokesman for the Court, reviewed earlier cases and in effect
overruled the exception of suits designed to relitigate issues
previously adjudicated by a federal court, and held that a suit for
injunction would not lie to restrain a proceeding in a State court on
the ground that the claim had been previously adjudicated. In so doing
he placed this issue in its proper context of _res judicata_. In
addition he went beyond the requirements of the case at bar to cast
doubts upon the exception of suits brought to enjoin the execution of
judgments of State courts obtained by fraud. Furthermore, by regarding
the exception of suits restraining proceedings in State courts in cases
which had been removed to the federal courts as emanating from the
removal acts, Justice Frankfurter concluded that only one exception had
been made by judicial construction to Sec. 265, [28 U.S.C.A. Sec. 2283]
namely, that permitting injunction of proceedings in State courts to
protect the possession of property previously acquired.[668] The rule of
this case was extended on the same day to forbid an injunction to
restrain proceedings in a State court in support of jurisdiction
previously begun earlier and still pending in the federal court.[669]
Federal Injunctions of State Official Action
Injunctions by federal courts restraining State officials from enforcing
unconstitutional State statutes constitute an indirect interference with
State courts and a serious obstruction to the administration of public
policy. From Osborn _v._ Bank of the United States,[670] which was the
first case in which an injunction was used to restrain State action
under an unconstitutional statute, to Ex parte Young[671] the Supreme
Court established firmly the rule that jurisdiction exists in the
federal courts to restrain the enforcement of unconstitutional State
statutes and to enjoin State officials charged with the duty of
enforcing State laws from bringing criminal or civil proceedings to
enforce an invalid statute. Until Ex parte Young, the Court had been
careful to sustain the jurisdiction of the lower federal courts to
enjoin the enforcement of unconstitutional State legislation only after
a finding of unconstitutionality,[672] but Ex parte Young abandoned
this rule by holding that the enforcement of a State statute by the
attorney general of the State through proceedings in State courts could
be enjoined pending the determination of its constitutionality.
Ex Parte Young
Although a suit to restrain the attorney general of a State from
proceeding in the courts of the State to enforce a State law not
declared unconstitutional would seem effectively to stay proceedings in
a State court, Justice Peckham drew a distinction between the power to
enjoin the attorney general and other law officers as individuals and a
suit against a State court on the ground that the former does not
include the "power to prevent any investigation or action by a grand
jury. The latter body is part of the machinery of a criminal court, and
an injunction against a State court would be a violation of the whole
scheme of our Government."[673] Justice Harlan, not convinced by this
distinction, characterized the suit as an attempt "_to tie the hands_ of
the _State_ so that it could not in any manner or by any mode of
proceeding _in its own courts_, test the validity of the statutes and
orders in question."[674]
Although the rigor of the rule of Ex parte Young has been mitigated by
subsequent decisions[675] and the mode of its exercise somewhat narrowed
by statute, it has not been overruled and remains a source of friction
in federal-state relations. Simultaneously, however, Sec. 266 (_see_ note
2 above[Transcriber's Note: Reference is to footnote 674 of Article III.])
has been construed strictly as designed "to secure the public interest
in 'a limited class of cases of special importance,'"[676] and not "a
measure of broad social policy to be construed with great liberality,
but as an enactment technical in the strict sense of the term and to be
applied as such."[677]
STATE INTERFERENCE BY _HABEAS CORPUS_ PROCEEDINGS WITH FEDERAL
JURISDICTION
The most spectacular type of State court interference with federal
courts has been their use of the writ of _habeas corpus_ to release
persons in federal custody. Between 1815 and 1861, judges in nine State
courts asserted the right to release persons in federal custody,[678]
and the issue was not finally settled until 1859, when Ableman _v._
Booth[679] was decided. Here a Justice of the Wisconsin Supreme Court
first released a prisoner held by a United States commissioner on
charges of violating the fugitive slave law. After the trial,
conviction, and sentence of the defendant, the State supreme court
issued a second writ of _habeas corpus_ and after hearing ordered the
release of the prisoner. The national Supreme Court then issued a writ
of error to the State court which refused to make a return. In an
opinion based in part on national supremacy and in part on dual
sovereignty, Chief Justice Taney, speaking for the Court, laid down the
absolute rule that no State court has the power to release prisoners
held in custody under the authority of the United States.[680]
Notwithstanding the strong language of the Court in Ableman _v._ Booth,
the Wisconsin courts thirteen years later again asserted the power to
release persons in federal custody by directing the release of an
enlisted soldier in the custody of a recruiting officer of the United
States Army. Once again the Court held that a State court has no
authority to issue a writ of _habeas corpus_ for the release of persons
held under the authority or claim and color of authority of the United
States. Justice Field for the Court went on to lay down the
generalization that neither government "can intrude with its judicial
process into the domain of the other, except so far as such intrusion
may be necessary on the part of the National Government to preserve its
rightful supremacy in cases of conflict of authority."[681]
FEDERAL INTERFERENCE BY REMOVAL AND _HABEAS CORPUS_
Another potential source of friction between State and federal courts is
the use of the writ of _habeas corpus_ or of removal proceedings in the
federal courts to release persons from State custody. As has already
been indicated the rule of national supremacy deprives the courts of the
States of any power to release persons held in federal custody. Recourse
to _habeas corpus_ or removal proceedings in the federal courts to
release persons in the custody of State courts is governed by statute
and comity. The Judiciary Act of 1789[682] conferred jurisdiction upon
the federal courts to issue writs of _habeas corpus_ to release persons
in State custody only for the purpose of having them appear as witnesses
in federal proceedings. The same act also provided for the removal
before trial into a federal court of civil cases arising under the laws
of the United States. Both branches of this jurisdiction were broadened
as a result of the nullification movement in South Carolina so as to
make either removal or _habeas corpus_ available to persons held in
State custody for any act done or omitted in pursuance of the laws of
the United States.[683] These recourses were in 1842 made available to
aliens restrained by State authority in violation of their international
rights,[684] and in 1867 to all persons restrained in violation of the
Constitution, laws, or treaties of the United States.[685] In substance
all these acts still remain on the statute book.[686]
Of these provisions the most important are those governing the release
of persons held under State authority for an act done or omitted under
federal authority and persons held in violation of the Constitution,
laws, or treaties of the United States. In the leading case of Tennessee
_v._ Davis,[687] decided in 1880, the question was faced of their
constitutionality. Davis was a federal revenue officer who, in the
discharge of his duties, killed a man, and was arraigned by Tennessee
for murder. He thereupon applied for removal of his case to a federal
court under the act of 1867. To Tennessee's evocation of the doctrine of
State sovereignty, the Court rejoined with a ringing assertion of the
principle of National Supremacy. Subsequently, the same provisions have
been construed to procure the release of a deputy United States marshal
from State custody for killing a man while protecting a Justice of the
Supreme Court under a Presidential order which was regarded as a "law"
of the United States;[688] the release of an election official held
under State authority for perjury on the ground that jurisdiction to
punish a false witness belonged to the federal courts in this
instance;[689] and the release of a collector of internal revenue held
in Kentucky for his refusal to file copies of his official papers with a
State court.[690] Similarly, the governor of a national home for
disabled soldiers was released from Ohio custody for serving
oleomargarine in the home in violation of an Ohio statute.[691] A more
extreme exercise of _habeas corpus_ jurisdiction is illustrated by
Hunter _v._ Wood[692] where a ticket agent of a railroad held in State
custody for an overcharge on a ticket was released because prior to his
trial in the State court, a United States circuit court had enjoined the
enforcement of the statute. The element common to all of these cases is
the supremacy of the National Government and the inability of the States
through judicial proceedings or otherwise to obstruct the enforcement of
federal authority. The doctrine of comity is inapplicable in this
category of cases.
COMITY AS A PRINCIPLE OF STATUTORY CONSTRUCTION
On the other hand, in Ex parte Royall,[693] decided in 1886, the Court
held that the jurisdiction of the lower federal courts in the above
category of cases involved no duty to release persons from State custody
but only a discretion to do so. Such discretion, the Court declared,
"should be exercised in the light of the relations existing, under our
system of government, between the judicial tribunals of the Union and of
the States, and in recognition of the fact that the public good requires
that those relations be not disturbed by unnecessary conflict between
the courts equally bound to guard and protect rights secured by the
Constitution."[694] In pursuance of these principles the Court has
subsequently formulated rules to the effect that mere error in the
prosecution and trial of a suit cannot confer jurisdiction upon a
federal court to review the proceedings upon a writ of _habeas
corpus_;[695] that the writ of _habeas corpus_ cannot be substituted for
the writ of error, however serious the errors committed by the State
court;[696] that except in extreme and urgent cases the federal courts
will not discharge a prisoner in State custody prior to final
disposition of the case in the State courts, where the prisoner must
first exhaust all State remedies; and even after the State courts have
acted, the federal courts will usually leave the prisoner to the usual
and orderly procedure of appeal to the Supreme Court. Furthermore, the
Supreme Court will, in the exercise of a sound discretion, issue a writ
of mandamus to compel a federal court to remand to a State court a
prosecution of a federal officer removed to it, when it appears that the
officer in question, in seeking removal, failed to make a candid,
specific, and positive explanation of his relation to the transaction
giving rise to the crime for which he was indicted.[697]
Because of the care with which the discretion to issue writs of _habeas
corpus_ and to grant removals has been exercised by the federal courts
to release persons from State custody there has been a minimum of
friction in this area of federal-state relations, in contrast to that
produced by their extensive use of injunctions to restrain the
enforcement of State statutes. In Wade _v._ Mayo,[698] Justice Murphy
cited the statistics of the Administrative Office of the United States
Courts which revealed that during the fiscal years of 1943, 1944, and
1945, there was an average of 451 _habeas corpus_ petitions filed each
year in federal district courts by persons in State custody, and that of
these petitions, an average of only six per year resulted in a reversal
of the conviction and the release of the prisoner.
COMITY AS COOPERATION
Moreover, cold comity may become on occasion warm cooperation between
the two systems of courts. In Ponzi _v._ Fessenden,[699] the matter at
issue was the authority of the Attorney General of the United States to
consent to the transfer on a writ of _habeas corpus_ of a federal
prisoner to a State court to be there put on trial upon indictments
there pending against him. The Court, speaking by Chief Justice Taft,
while conceding that there was no express statutory authority for such
action, sustained it. Said the Chief Justice: "We live in the
jurisdiction of two sovereignties, each having its own system of courts
to declare and enforce its laws in common territory. It would be
impossible for such courts to fulfil their respective functions without
embarrassing conflict unless rules were adopted by them to avoid it. The
people for whose benefit these two systems are maintained are deeply
interested that each system shall be effective and unhindered in its
vindication of its laws. The situation requires, therefore, not only
definite rules fixing the powers of the courts in cases of jurisdiction
over the same persons and things in actual litigation, but also a spirit
of reciprocal comity and mutual assistance to promote due and orderly
procedure."[700]
EARLY USE OF STATE COURTS IN ENFORCEMENT OF FEDERAL LAW
The final phase of the relation of State courts has to do with their
administration of federal law. Although it is the general rule that
Congress cannot vest the judicial power of the United States in courts
other than those created in pursuance of article III,[701] it has from
the beginning of the National Government left to the State courts wide
areas of jurisdiction which it might have vested exclusively in the
federal courts, section 25 of the Judiciary Act of 1789 offering the
supreme illustration. But going far beyond that, in the latter years of
the eighteenth century and the early part of the nineteenth, Congress
provided that suits by the National Government itself for fines,
forfeitures, and penalties imposed by the revenue laws might be brought
in State courts of competent jurisdiction as well as in the federal
courts.[702] The Fugitive Slave Act of 1793,[703] the Naturalization Act
of 1795,[704] and the Alien Enemies Act of 1798,[705] all imposed
positive duties on State courts to enforce federal law. In 1799 the
State courts were vested with jurisdiction to try criminal offenses
against federal laws.[706] Extensive reliance was placed on State courts
for the enforcement of the Embargo Acts;[707] and the act of March 3,
1815,[708] vested in State or county courts within or directly adjoining
a federal tax-collection district cognizant "of all complaints, suits
and prosecutions for taxes, duties, fines, penalties, and forfeitures."
Retreat From This Practice
The indifference, however, of the State courts in New England to the
Embargo Acts, the later hostility of courts in the northern States to
the Fugitive Slave Act, and the refusal of courts in other States to
administer federal law on the general principle that the courts of no
nation are bound to enforce the penal laws of another,[709] all combined
to produce strong sentiments against the use of State courts to
administer federal law. These sentiments came in time to be incorporated
in dissenting opinions,[710] and in 1842 in Prigg _v._ Pennsylvania[711]
the Court definitely ruled that the States could not be compelled to
enforce federal law. However, it was later held that this ruling did not
prevent Congress from authorizing State courts to administer federal law
or the action taken by them, if they choose to do so, from being
valid.[712]
Resumption of the Practice
Near the end of the nineteenth century and afterwards Congress resumed
its earlier practice of vesting concurrently the enforcement of
federally created rights in the State and federal courts. The
administration of Indian lands and the determination of rights to
inherit allotted lands[713] marked the beginning of the restoration of
the use of State courts to apply federal law, and the Federal Employers'
Liability Act of 1908[714] carried the practice further, not only by
vesting concurrent jurisdiction in suits arising under the act, in State
courts but also in prohibiting the removal of cases begun in State
courts to the federal courts. Soon afterwards the Connecticut courts in
a compensation case applied the State's common law rules of liability
contrary to the federal act and held that Congress could not require a
State court to grant a remedy which local law did not permit. The
Connecticut courts further held that enforcement of the federal act was
contrary to the public policy of the State.[715] This decision was
overruled in the Second Employers' Liability Cases,[716] where it was
held on the basis of national supremacy that rights arising under the
act can be enforced "as of right, in the courts of the States when their
jurisdiction, as prescribed by local laws, is adequate to the occasion."
Subsequently, the Supreme Court has held that the rights created under
this statute cannot be defeated by forms of local practice and that it
is the duty of the Supreme Court to construe allegations in a complaint
asserting a right under the liability act in order to determine whether
a State court has denied a right of trial guaranteed by Congress.[717]
STATE OBLIGATION TO ENFORCE FEDERAL LAW
The issue of State obligation to administer federal law was presented
most recently by Testa _v._ Katt.[718] This case arose out of the
Emergency Price Control Act of 1942,[719] which provided that persons
who had been overcharged in violation of the act or, in the alternative,
the Price Administrator, could sue for treble damages in any court of
competent jurisdiction. On the ground that one sovereign cannot enforce
the penal laws of another, the Rhode Island Supreme Court ruled that the
State courts had no jurisdiction of such suits. Assuming for the
purposes of the case that the treble damage provision, was "penal" in
nature, Justice Black for a unanimous Court proceeded to lay to rest the
principle that a State court is not bound to enforce federal criminal
law as an assumption flying "in the face of the fact that the States of
the Union constitute a nation" and one which disregarded the supremacy
clause. Justice Black also pointed to early acts of Congress and early
decisions of the Supreme Court as establishing the rule that "State
courts do not bear the same relation to the United States as they do to
foreign countries."[720] The Prigg case, though not overruled expressly,
was ignored save for its citation in a footnote.[721]
RIGHT OF FOREIGN CORPORATIONS TO RESORT TO FEDERAL COURTS
In a series of cases the Court has been called upon to adjudicate
between the power of a State to exclude foreign corporations from doing
a purely domestic business within its borders and the right of such
foreign corporations to resort to the federal courts. After deciding
first one way and then the other, on the basis of some highly refined
distinctions,[722] it finally, in 1922, came out unqualifiedly for the
latter right. This was in Terral _v._ Burke Construction Co.,[723] in
which an Arkansas statute requiring the cancellation of the license of a
foreign corporation to do business in the State, upon notice that such
corporation had removed a case to a federal court, was pronounced void.
At the same time all contrary decisions were explicitly overruled.
Clause 3. The Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury; and such Trial shall be held in the State where the said
Crimes shall have been committed; but when not committed within any
State, the Trial shall be at such Place or Places as the Congress may by
Law have directed. _See_ Amendment VI, pp. 878-881.
Section 3. Treason against the United States, shall consist
only in levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort. No Person shall be convicted of Treason
unless on the testimony of two Witnesses to the same overt Act, or on
Confession in open Court.
Treason
The provisions and phraseology of this section are derived from the
English Statute of Treasons enacted in 1351, in the reign of Edward
III,[724] as an expression of grievance against the application of the
doctrine of constructive treasons by the common law courts. The
constitutional definition is, of course, much more restrictive than the
enumeration of treasons in the English statute, but like that statute,
it is emphatically a limitation on the power of government to define
treason and to prove its existence. The rigid and exclusive definition
of treason takes from Congress all power to define treason and
prescribes limitations on the power to prescribe punishment thereupon.
LEVYING WAR
Early judicial interpretation of the meaning of treason in terms of
levying war was conditioned by the partisan struggles of the early
nineteenth century, in which were involved the treason trials of Aaron
Burr and his associates. In Ex parte Bollman,[725] which involved two of
Burr's confederates, Chief Justice Marshall, speaking for himself and
three other Justices, confined the meaning of levying of war to the
actual waging of war. "However flagitious may be the crime of conspiring
to subvert by force the government of our country, such conspiracy is
not treason. To conspire to levy war and actually to levy war, are
distinct offences. The first must be brought into open action, by the
assemblage of men for a purpose treasonable in itself, or the fact of
levying war cannot have been committed. So far has this principle been
carried, that * * * it has been determined that the actual enlistment of
men, to serve against the government, does not amount to the levying of
war."[726] Chief Justice Marshall was careful, however, to state that
the Court did not mean that no person could be guilty of this crime who
had not appeared in arms against the country. "On the contrary, if it be
actually levied, that is, if a body of men be actually assembled, for
the purpose of effecting by force a treasonable purpose, all those who
perform any part, however minute, or however remote from the scene of
action, and who are actually leagued in the general conspiracy, are to
be considered as traitors. But there must be an actual assembling of
men, for the treasonable purpose, to constitute a levying of war."[727]
On the basis of these considerations and due to the fact that no part of
the crime charged had been committed in the District of Columbia, the
Court held that Bollman and Swartwout could not be tried in the District
and ordered their discharge. He continued by saying that "the crime of
treason should not be extended by construction to doubtful cases" and
concluded that no conspiracy for overturning the Government and "no
enlisting of men to effect it, would be an actual levying of war."[728]
The Burr Trial
Not long afterward the Chief Justice went to Richmond to preside over
the trial of Burr himself. His ruling[729] denying a motion to introduce
certain collateral evidence bearing on Burr's activities is significant
both for rendering the latter's acquittal inevitable and for the
qualifications and exceptions made to the Bollman decision. In brief
this ruling held that Burr, who had not been present at the assemblage
on Blennerhassett's Island, could be convicted of advising or procuring
a levying of war, only upon the testimony of two witnesses to his having
procured the assemblage. This operation having been covert, such
testimony was naturally unobtainable. The net effect of Marshall's
pronouncements was to make it extremely difficult to convict one of
levying war against the United States short of the conduct of or
personal participation in actual hostilities.[730]
AID AND COMFORT TO THE ENEMY; THE CRAMER CASE
Since the Bollman case only three treason cases have ever reached the
Supreme Court, all of them outgrowths of World War II and all charging
adherence to enemies of the United States and giving them aid and
comfort. In the first of these, Cramer _v._ United States,[731] the
issue was whether the "overt act" had to be "openly manifest treason" or
if it was enough if, when supported by other proper evidence, it showed
the required treasonable intention.[732] The Court in a five-to-four
opinion by Justice Jackson in effect took the former view holding that
"the two-witness principle" interdicted "imputation of _incriminating
acts_ to the accused by circumstantial evidence or by the testimony of a
single witness,"[733] even though the single witness in question was the
accused himself. "Every act, movement, deed, and word of the defendant
charged to constitute treason must be supported by the testimony of two
witnesses,"[734] Justice Jackson asserted. Justice Douglas in a dissent,
in which Chief Justice Stone and Justices Black and Reed concurred,
contended that Cramer's treasonable intention was sufficiently shown by
overt acts as attested to by two witnesses each, plus statements made by
Cramer on the witness stand.
THE HAUPT CASE
The Supreme Court sustained a conviction of treason, for the first time
in its history in 1947 in Haupt _v._ United States.[735] Here it was
held that although the overt acts relied upon to support the charge of
treason--defendant's harboring and sheltering in his home his son who
was an enemy spy and saboteur, assisting him in purchasing an
automobile, and in obtaining employment in a defense plant--were all
acts which a father would naturally perform for a son, this fact did not
necessarily relieve them of the treasonable purpose of giving aid and
comfort to the enemy. Speaking for the Court, Justice Jackson said: "No
matter whether young Haupt's mission was benign or traitorous, known or
unknown to the defendant, these acts were aid and comfort to him. In the
light of his mission and his instructions, they were more than casually
useful; they were aid in steps essential to his design for treason. If
proof be added that the defendant knew of his son's instructions,
preparation and plans, the purpose to aid and comfort the enemy becomes
clear."[736]
The Court held that conversations and occurrences long prior to the
indictment were admissible evidence on the question of defendant's
intent. And more important, it held that the constitutional requirement
of two witnesses to the same overt act or confession in open court does
not operate to exclude confessions or admissions made out of court,
where a legal basis for the conviction has been laid by the testimony of
two witnesses of which such confessions or admissions are merely
corroborative. This relaxation of restrictions surrounding the
definition of treason evoked obvious satisfaction from Justice Douglas
who saw in the Haupt decision a vindication of his position in the
Cramer case. His concurring opinion contains what may be called a
restatement of the law of treason and merits quotation at length;
"As the _Cramer_ case makes plain, the overt act and the intent with
which it is done are separate and distinct elements of the crime. Intent
need not be proved by two witnesses but may be inferred from all the
circumstances surrounding the overt act. But if two witnesses are not
required to prove treasonable intent, two witnesses need not be required
to show the treasonable character of the overt act. For proof of
treasonable intent in the doing of the overt act necessarily involves
proof that the accused committed the overt act with the knowledge or
understanding of its treasonable character.
"The requirement of an overt act is to make certain a treasonable
project has moved from the realm of thought into the realm of action.
That requirement is undeniably met in the present case, as it was in the
case of _Cramer_.
"The _Cramer_ case departed from those rules when it held that 'The
two-witness principle is to interdict imputation of _incriminating acts_
to the accused by circumstantial evidence or by the testimony of a
single witness.' 325 U.S. p. 35. The present decision is truer to the
constitutional definition of treason when it forsakes that test and
holds that an act, quite innocent on its face, does not need two
witnesses to be transformed into an incriminating one."[737]
THE KAWAKITA CASE
The third case referred to above is Kawakita _v._ United States,[738]
which was decided on June 2, 1952. The facts are sufficiently stated in
the following headnote: "At petitioner's trial for treason, it appeared
that originally he was a native-born citizen of the United States and
also a national of Japan by reason of Japanese parentage and law. While
a minor, he took the oath of allegiance to the United States; went to
Japan for a visit on an American passport; and was prevented by the
outbreak of war from returning to this country. During the war, he
reached his majority in Japan; changed his registration from American to
Japanese; showed sympathy with Japan and hostility to the United States;
served as a civilian employee of a private corporation producing war
materials for Japan; and brutally abused American prisoners of war who
were forced to work there. After Japan's surrender, he registered as an
American citizen; swore that he was an American citizen and had not done
various acts amounting to expatriation; and returned to this country on
an American passport." The question whether, on this record Kawakita had
intended to renounce American citizenship, said the Court, in sustaining
conviction, was peculiarly one for the jury and their verdict that he
had not so intended was based on sufficient evidence. An American
citizen, it continued, owes allegiance to the United States wherever he
may reside, and dual nationality does not alter the situation.[739]
DOUBTFUL STATE OF THE LAW OF TREASON TODAY
The vacillation of Chief Justice Marshall between the Bollman[740] and
Burr[741] cases and the vacillation of the Court in the Cramer[742] and
Haupt[743] cases leaves the law of treason in a somewhat doubtful
condition. The difficulties created by the Burr case have been obviated
to a considerable extent through the punishment of acts ordinarily
treasonable in nature under a different label within a formula provided
by Chief Justice Marshall himself in the Bollman case. The passage
reads: "Crimes so atrocious as those which have for their object the
subversion by violence of those laws and those institutions which have
been ordained in order to secure the peace and happiness of society, are
not to escape punishment, because they have not ripened into treason.
The wisdom of the legislature is competent to provide for the case; and
the framers of our Constitution * * * must have conceived it more safe
that punishment in such cases should be ordained by general laws, formed
upon deliberation, under the influence of no resentments, and without
knowing on whom they were to operate, than that it should be inflicted
under the influence of those passions which the occasion seldom fails to
excite, and which a flexible definition of the crime, or a construction
which would render it flexible, might bring into operation."[744]
Clause 2. The Congress shall have Power to declare the Punishment of
Treason, but no Attainder of Treason shall work Corruption of Blood, or
Forfeiture except during the Life of the Person attainted.
CORRUPTION OF BLOOD AND FORFEITURE
The Confiscation Act of 1862[745] "to Suppress Insurrection; to Punish
Treason and Rebellion; to Seize and Confiscate the Property of Rebels
raised issues under article III, section 3, clause 2." Because of the
constitutional doubts of the President the act was accompanied by an
explanatory joint resolution which stipulated that only a life estate
terminating with the death of the offender could be sold and that at his
death his children could take the fee simple by descent as his heirs
without deriving any title from the United States. In applying this act,
passed in pursuance of the war power and not the power to punish
treason,[746] the Court in one case[747] quoted with approval the
English distinction between a disability absolute and perpetual and one
personal or temporary. Corruption of blood as a result of attainder of
treason was cited as an example of the former and was defined as the
disability of any of the posterity of the attainted person "to claim any
inheritance in fee simple, either as heir to him, or to any ancestor
above him."[748]
Notes
[1] Miller, On the Constitution, 314 (New York, 1891).
[2] 219 U.S. 346 (1911)
[3] Ibid. 361.
[4] United States _v._ Arredondo, 6 Pet. 691 (1832).
[5] General Investment Co. _v._ New York Central R. Co., 271 U.S. 228,
230 (1926).
[6] For distinctions between judicial power and jurisdiction _see_
Williams _v._ United States, 289 U.S. 553, 566 (1933); and the dissent
of Justice Rutledge in Yakus _v._ United States, 321 U.S. 414, 467-468
(1944).
[7] Michaelson _v._ United States, 266 U.S. 42 (1924).
[8] McIntire _v._ Wood, 7 Cr. 504 (1813); Ex parte Bollman, 4 Cr. 75
(1807).
[9] Wayman _v._ Southard, 10 Wheat. 1 (1825)
[10] Gumbel _v._ Pitkin, 124 U.S. 131 (1888).
[11] Ex parte Peterson, 253 U.S. 300 (1920).
[12] Ex parte Garland, 4 Wall. 333, 378 (1867).
[13] Chisholm _v._ Georgia, 2 Dall. 419 (1793); Kentucky _v._ Dennison,
24 How. 66, 98 (1861) contains a review of authorities on this point.
[14] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 252 (1868); Cary _v._
Curtis, 3 How. 236 (1845); Shelden _v._ Sill, 8 How. 441 (1850); Kline
_v._ Burke Construction Co., 260 U.S. 226 (1922). _See also_ the cases
discussed under the heading of the Power of Congress to regulate the
jurisdiction of the lower federal courts, _infra_, p. 616.
[15] 2 Dall. 409 (1792).
[16] His initial effort was in United States _v._ Ferreira, 13 How. 40
(1852). This case involved the validity of an act of Congress directing
the judge of the territorial court of Florida to examine and adjudge
claims of Spanish subjects against the United States and to report his
decisions with evidence thereon to the Secretary of the Treasury who in
turn was to pay the award to the claimant if satisfied that the
decisions were just and within the terms of the treaty of cession. After
Florida became a State and the territorial court a district court of the
United States, the Supreme Court refused to entertain an appeal under
the statute for want of jurisdiction to review nonjudicial proceedings.
The duties required by the act, it was said "are entirely alien to the
legitimate functions of a judge or court of justice, and have no analogy
to the general or special powers ordinarily and legally conferred on
judges or courts to secure the due administration of the laws." Ibid.
51.
[17] 2 Wall. 561 (1865).
[18] 117 U.S. 697 Appx. (1864). _See also_ De Groot _v._ United States,
5 Wall. 419 (1867) and United States _v._ Klein, 13 Wall. 128 (1872),
which sustained Supreme Court revision after the jurisdiction of the
Court of Claims had been made final. The Gordon decision had indicated
that the Supreme Court could not review the decision of any legislative
court.
[19] 117 U.S. 697, 703. This last doctrine was repeated to the extent
that for many years an award of execution as distinguished from finality
of judgment came to be regarded as an essential attribute of judicial
power. _See_ In re Sanborn, 148 U.S. 222, 226 (1893); Interstate
Commerce Commission _v._ Brimson, 154 U.S. 447, 483 (1894); La Abra
Silver Mining Co. _v._ United States, 175 U.S. 423, 457 (1899); Frasch
_v._ Moore, 211 U.S. 1 (1908); Muskrat _v._ United States, 219 U.S. 346,
355, 361-362 (1911), and Postum Cereal Co. _v._ California Fig Nut Co.,
272 U.S. 693 (1927).
[20] 273 U.S. 70 (1927).
[21] 276 U.S. 71 (1928).
[22] 274 U.S. 123 (1927). This case also clarified any doubts concerning
a federal declaratory judgment act which was passed in 1934 and
sustained in Aetna Life Insurance Co. _v._ Haworth, 300 U.S. 227 (1937).
[23] 288 U.S. 249 (1933). The decision in the Swope and Wallace cases
removed all constitutional doubts which had previously shrouded a
proposed federal declaratory judgment act which was enacted in 1934 (48
Stat. 955) and sustained in Aetna Life Ins. Co. _v._ Haworth, 300 U.S.
227 (1937).
[24] John Charles Fox, The King _v._ Almon, 24 Law Quarterly Review 184,
194-195 (1908).
[25] John Charles Fox, The Summary Power to Punish Contempt, 25 Law
Quarterly Review, 238, 252 (1909).
[26] 1 Stat. 73, 83.
[27] Act of March 2, 1831, 4 Stat. 487, now 18 U.S.C.A. 401. For a
summary of the Peck Impeachment and the background of the act of 1831,
_see_ Felix Frankfurter and James Landis, Power of Congress Over
Procedure in Criminal Contempts in Inferior Federal Courts--A Study in
Separation of Powers, 37 Harvard Law Review, 1010, 1024-1028 (1924).
[28] 19 Wall. 505 (1874).
[29] Ibid. 505, 510-511.
[30] Gompers _v._ Bucks Stove & Range Co., 221 U.S. 418, 450 (1911).
_See also_ In re Debs, 158 U.S. 504, 595 (1895).
[31] U.S. 42 (1924).
[32] 38 Stat. 730 (1914).
[33] 266 U.S. 42, 65-66.
[34] 247 U.S. 402 (1918).
[35] Ibid. 418-421.
[36] 263 U.S. 255 (1923). In his dissent in this case, Justice Holmes
stated that unless a judge has power to "lay hold of anyone who ventures
to publish anything that tends to make him unpopular or to belittle him
* * *. A man cannot be summarily laid by the heels because his words may
make public feeling more unfavorable in case the judge should be asked
to act at some later date, any more than he can for exciting feeling
against a judge for what he already has done." Ibid. 281-282.
[37] 313 U.S. 33, 47-53 (1941).
[38] 314 U.S. 252, 260 (1941). _See_ pp. 783-784 (Amendment I).
[39] 128 U.S. 289 (1888).
[40] 267 U.S. 517 (1925).
[41] Ibid. 534, 535.
[42] Ibid. 539.
[43] Sacher _v._ United States, 343 U.S. 1 (1952).
[44] Dennis _v._ United States, 341 U.S. 494 (1951).
[45] 343 U.S. 1, 11, 13-14. Justice Clark did not participate. Justices
Black, Frankfurter, and Douglas dissented. Justice Frankfurter's opinion
is accompanied by an elaborate review of exchanges between the trial
judge and defense counsel, excerpted from the record of the case. On the
constitutional issue he said: "Summary punishment of contempt is
concededly an exception to the requirements of Due Process. Necessity
dictates the departure. Necessity must bound its limits. In this case
the course of events to the very end of the trial shows that summary
measures were not necessary to enable the trial to go on. Departure from
established judicial practice, which makes it unfitting for a judge who
is personally involved to sit in his own case, was therefore
unwarranted. Neither self-respect nor the good name of the law required
it. Quite otherwise. Despite the many incidents of contempt that were
charged, the trial went to completion, nine months after the first
incident, without a single occasion making it necessary to lay any one
of the lawyers by the heel in order to assure that the trial proceed.
The trial judge was able to keep order and to continue the court's
business by occasional brief recesses calculated to cool passions and
restore decorum, by periodic warnings to defense lawyers, and by
shutting off obstructive arguments whenever rulings were concisely
stated and firmly held to." Ibid. 36. Justice Douglas summarized the
position of all three dissenters, as follows: "I agree with Mr. Justice
Frankfurter that one who reads this record will have difficulty in
determining whether members of the bar conspired to drive a judge from
the bench or whether the judge used the authority of the bench to
whipsaw the lawyers, to taunt and tempt them, and to create for himself
the role of the persecuted. I have reluctantly concluded that neither is
blameless, that there is fault on each side, that we have here the
spectacle of the bench and the bar using the courtroom for an unseemly
demonstration of garrulous discussion and of ill will and hot tempers. I
therefore agree with Mr. Justice Black and Mr. Justice Frankfurter that
this is the classic case where the trial for contempt should be held
before another judge. I also agree with Mr. Justice Black that
petitioners were entitled by the Constitution to a trial by jury." Ibid.
80.
[46] 330 U.S. 258, 293-307 (1947).
[47] 203 U.S. 563 (1906)
[48] Gompers _v._ Bucks Stove & Range Co., 221 U.S. 418, 441-443 (1911);
Ex parte Grossman, 267 U.S. 87 (1925). _See also_ Bessette _v._ W.B.
Conkey Co., 194 U.S. 324, 327-328 (1904).
[49] 267 U.S. 87, 119-120 (1925).
[50] Michaelson _v._ United States, 266 U.S. 42, 65-66 (1924).
[51] 154 U.S. 447 (1894).
[52] Penfield Co. _v._ Securities and Exchange Commission, 330 U.S. 585
(1947). Note the dissent of Justice Frankfurter. For delegations of the
subpoena power to administrative agencies and the use of judicial
process to enforce them _see also_ McCrone _v._ United States, 307 U.S.
61 (1939); Endicott Johnson Corp. _v._ Perkins, 317 U.S. 501 (1943);
Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186 (1946). In the last
mentioned case Justice Murphy dissented on the ground that delegation of
the subpoena power to nonjudicial officers is unconstitutional as "a
corrosion of liberty." In the Endicott Johnson Case he expressed
dissatisfaction with the exercise of this power by administrative
agencies but confined his dissent to emphasizing greater judicial
scrutiny in enforcing administrative orders to appear and produce
testimony.
[53] 1 Stat. 73, 81.
[54] Ibid. 81-82.
[55] 1 Cr. 137 (1803). _Cf._ Wiscart _v._ Dauchy, 3 Dall. 321 (1796).
[56] McIntire _v._ Wood, 7 Cr. 504 (1813); and McClung _v._ Silliman, 6
Wheat. 598 (1821).
[57] 12 Pet. 524 (1838).
[58] Ex parte Bollman, 4 Cr. 74, 93, 94 (1807).
[59] Ex parte Yerger, 8 Wall. 85 (1869).
[60] _See also_ Ex parte McCardle, 7 Wall. 506 (1869).
[61] In United States _v._ Detroit Timber & Lumber Co., 200 U.S. 321,
339 (1906), Justice Brewer, speaking for the Court, approached a theory
of inherent equity jurisdiction when he declared: "The principles of
equity exist independently of and anterior to all Congressional
legislation, and the statutes are either annunciations of those
principles or limitations upon their application in particular cases."
It should be emphasized, however, that the Court made no suggestion that
it could apply pre-existing principles of equity without jurisdiction
over the subject matter. Indeed, the inference is to the contrary. In a
dissenting opinion in which Justices McKenna and Van Devanter joined, in
Paine Lumber Co. _v._ Neal, 244 U.S. 459, 475 (1917), Justice Pitney
contended that article III, section 2, "had the effect of adopting
equitable remedies in all cases arising under the Constitution and laws
of the United States where such remedies are appropriate."
[62] Boyce's Executors _v._ Grundy, 3 Pet. 210 (1830).
[63] 1 Stat. 333; 28 U.S.C.A. 1651.
[64] 14 Stat. 475 (1867); 26 U.S.C.A. 3653 (a).
[65] 36 Stat. 557 (1910); 28 U.S.C.A. 2281.
[66] 50 Stat. 752 (1937); 28 U.S.C.A. 2282.
[67] 38 Stat. 220 (1913); 28 U.S.C.A. 2325.
[68] 48 Stat. 775 (1934); 28 U.S.C.A. 1342.
[69] 38 Stat. 730 (1914) (Clayton Act); 29 U.S.C.A. 52, and 47 Stat. 70
(1932) (Norris-LaGuardia Act); 29 U.S.C.A. 101-115.
[70] 56 Stat. 31 (1942), Sec. 204; 50 U.S.C.A. 924 (App.).
[71] Freeman _v._ Howe, 24 How. 450 (1861); Gaines _v._ Fuentes, 92 U.S.
10 (1876); Ex parte Young, 209 U.S. 123 (1908).
[72] Langnes _v._ Green, 282 U.S. 531 (1931); Riehle _v._ Margolies, 270
U.S. 218 (1929), and Essanay Film Mfg. Co. _v._ Kane, 258 U.S. 358
(1922). _See also_ Hill _v._ Martin, 296 U.S. 393, 403 (1935); Kohn _v._
Central Distributing Co., 306 U.S. 531, 534 (1939); and Oklahoma Packing
Co. _v._ Oklahoma Gas and Electric Co., 309 U.S. 4, 9 (1940).
[73] 254 U.S. 443 (1921).
[74] Lauf _v._ E.G. Shinner & Co., 303 U.S. 323 (1938); New Negro
Alliance _v._ Sanitary Grocery Co., 303 U.S. 552 (1938).
[75] In addition to the cases cited in note 2, [Transcriber's Note:
Reference is to Footnote 74, above.] _see_ Milk Wagon Drivers' Union
_v._ Lake Valley Farm Products Co., 311 U.S. 91, 100-103 (1940).
[76] 319 U.S. 182 (1943).
[77] Ibid. 187, quoting Cary _v._ Curtis, 3 How. 236, 245 (1845).
[78] 321 U.S. 414 (1944).
[79] Washington-Southern Navigation Co. _v._ Baltimore Co., 263 U.S. 629
(1924).
[80] 10 Wheat. 1 (1825).
[81] 106 U.S. 272, 280 (1882).
[82] Washington-Southern Navigation Co. _v._ Baltimore Co., 263 U.S.
629, 635, 636 (1924).
[83] McDonald _v._ Pless, 238 U.S. 264, 266 (1915); Griffin _v._
Thompson, 2 How. 244, 257 (1844).
[84] Gumbel _v._ Pitkin, 124 U.S. 131 (1888); Covell _v._ Heyman, 111
U.S. 176 (1884), and Buck _v._ Colbath, 3 Wall. 334 (1866).
[85] Eberly _v._ Moore, 24 How. 147 (1861); Arkadelphia Milling Co. _v._
St. Louis S.W.R. Co., 249 U.S. 134 (1919).
[86] Gagnon _v._ United States, 193 U.S. 451, 458 (1904).
[87] 2 Wall. 123, 128-129 (1864).
[88] 253 U.S. 300 (1920).
[89] Ibid. 312.
[90] Ex parte Secombe, 19 How. 9, 13 (1857).
[91] 4 Wall. 333 (1867).
[92] Ibid. 378-380. For an extensive treatment of disbarment and
American and English precedents thereon, _see_ Ex parte Wall, 107 U.S.
265 (1883).
[93] Reorganization of the Judiciary, Hearings on S. 1392; 75th Cong.,
1st sess., 1937, Pt. 3, p. 491. Justices Van Devanter and Brandeis
approved the letter. For earlier proposals to have the Court sit in
divisions, _see_ Felix Frankfurter and James M. Landis, The Business of
the Supreme Court, pp. 81-83, (New York, 1928).
[94] 1 Stat. 73-74, Sec. 2-3.
[95] Ibid. 73, 74-76; Sec. 4-5.
[96] 2 Stat. 89.
[97] 2 Stat. 132. For a general account of the events leading to the
acts of 1801 and 1802, _see_ Felix Frankfurter and James M. Landis, The
Business of the Supreme Court; a study in the federal judicial system
(New York, 1928), pp. 25-32. This book also contains an excellent
account of the organization and reorganization of the judiciary by
statute from time to time. For another account of the acts of 1801 and
1802 _see_ Charles Warren, The Supreme Court in United States History
(Boston, Rev. ed., 1932), 189-215.
[98] 1 Cr. 299, 309 (1803).
[99] 38 Stat. 208, 219-221.
[100] Prior to the act of 1913 Congress had voted to abolish the
Commerce Court, but President Taft vetoed the bill which converted the
Commerce Court judges into ambulatory circuit judges. For a general
account of the abolition of the Commerce Court, _see_ Felix Frankfurter
and James M. Landis, The Business of the Supreme Court (New York, 1928),
pp. 166-173.
[101] Evans _v._ Gore, 253 U.S. 245 (1920).
[102] 268 U.S. 501 (1925).
[103] 307 U.S. 277 (1939).
[104] Ibid. 278-282.
[105] Ibid. 282.
[106] 289 U.S. 516, 526 (1933).
[107] 289 U.S. 553 (1933).
[108] 36 Stat. 539 (1910). For the legislative history of the Commerce
Court _see_ Felix Frankfurter and James M. Landis, The Business of the
Supreme Court (New York, 1928), pp. 155-164.
[109] 56 Stat. 23, 31-33.
[110] In Lockerty _v._ Phillips, 319 U.S. 182 (1943), the limitations on
the use of injunctions, except the prohibition against interlocutory
decrees, was unanimously sustained.
[111] 321 U.S. 414 (1944).
[112] Ibid. 444.
[113] Ibid. 468.
[114] Pet. 511 (1928).
[115] Ibid. 546.
[116] Ibid. 546. Closely analogous to the territorial courts are
extraterritorial and consular courts created in the exercise of the
foreign relations power. _See_ In re Ross, 140 U.S. 453 (1891).
[117] 279 U.S. 438 (1929).
[118] Ibid. 451.
[119] Gordon _v._ United States, 117 U.S. 697 (1886); McElrath _v._
United States, 102 U.S. 426 (1880); Williams _v._ United States, 289
U.S. 553 (1933).
[120] United States _v._ Coe, 155 U.S. 76 (1894).
[121] Wallace _v._ Adams, 204 U.S. 415 (1907).
[122] Old Colony Trust Co. _v._ Commissioner of Internal Revenue, 279
U.S. 716 (1929); Ex parte Bakelite Corporation, 279 U.S. 438 (1929).
[123] The general tendency in the evolution of legislative courts is to
provide for tenure during good behavior. This is true of the judges of
the Court of Claims, the Customs Court, the Court of Customs and Patent
Appeals. The terms of the judges of the Tax Court are limited to twelve
years and the judges are subject to removal by the President after
notice and hearing. For the provisions of the statutes governing these
matters _see_ 28 U.S.C. Sec. 241, 296, 301-301a; 26 U.S.C. Sec. 1102b, d,
f. The territorial judges in Alaska (48 U.S.C. Sec. 112) have four-year
terms subject to removal by the President; in Hawaii six years unless
removed by the President (48 U.S.C. Sec. 643), eight years in Puerto
Rico (28 U.S.C. Sec. 803); eight years in the Canal Zone subject to
removal by the President (48 U.S.C. Sec. 1353); and four years in the
Virgin Islands unless sooner removed by the President (48 U.S.C. Sec.
1405y).
[124] 141 U.S. 174 (1891).
[125] Ibid. 188
[126] 289 U.S. 553 (1933).
[127] 268 U.S. 501 (1925).
[128] 117 U.S. 697 (1886).
[129] 13 How. 40, 48 (1852). _See also_ Keller _v._ Potomac Electric
Power Co., 261 U.S. 428 (1923); Federal Radio Commission _v._ General
Electric Co., 231 U.S. 464 (1930).
[130] 5 Wall. 419 (1867).
[131] Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693
(1927); Federal Radio Commission _v._ General Electric Co., 281 U.S. 464
(1930); Pope _v._ United States, 323 U.S. 1 (1944).
[132] 112 U.S. 50 (1884).
[133] Keller _v._ Potomac Electric Co., 261 U.S. 428 (1923).
[134] Federal Radio Commission _v._ General Electric Co., 281 U.S. 464
(1930).
[135] 279 U.S. 438 (1929). All of these rulings with respect to the
vesting of revisory powers in the courts of the District carried the
qualification that revisory actions and interlocutory opinions, as
nonjudicial functions, were not reviewable on appeal to the Supreme
Court of the United States. Frasch _v._ Moore, 211 U.S. 1 (1908); E.C.
Atkins & Co. _v._ Moore, 212 U.S. 285 (1909); Keller _v._ Potomac
Electric Co., 261 U.S. 428 (1923); Federal Radio Commission _v._ General
Electric Co., 281 U.S. 464 (1930).
[136] O'Donoghue _v._ United States, 289 U.S. 516 (1933).
[137] Ibid. 545-546.
[138] Ibid. 545. Chief Justice Hughes in a dissent joined by Justice Van
Devanter and Cardozo took the position that the plenary power of
Congress over the District is complete in itself and its power to create
courts in the District is not derived from article III. Consequently,
they argued that the limitations of article III do not apply to the
organization of such courts. The O'Donoghue Case is discussed in the
opinions of Justices Jackson and Rutledge and in the dissent of Chief
Justice Vinson in National Mutual Insurance Co. _v._ Tidewater Transfer
Co., 337 U.S. 582, 601-602, 608-611, 638-640 (1949).
[139] 6 Wheat. 264 (1821).
[140] Ibid. 378.
[141] Miller, Constitution, 314, quoted in Muskrat _v._ United States,
219 U.S. 346, 356 (1911).
[142] 9 Wheat. 738, 819 (1824).
[143] 2 Dall. 419, 431, 432 (1793).
[144] In re Pacific Railway Commission, 32 F. 241, 255 (1887). Justice
Field repeated the substance of this definition in Smith _v._ Adams, 130
U.S. 167, 173-174 (1889).
[145] 219 U.S. 346, 357 (1911).
[146] Ibid. 361-362. Judicial power is here defined by Justice Day as
"the right to determine actual controversies arising between adverse
litigants, duly instituted in courts of proper jurisdiction." Ibid. 361.
[147] Muskrat _v._ United States, 219 U.S. 346 (1911); Chicago & Grand
Trunk R. Co. _v._ Wellman, 143 U.S. 339 (1892); Lampasas _v._ Bell, 180
U.S. 276 (1901); Braxton County Court _v._ West Virginia, 208 U.S. 192
(1908); Smith _v._ Indiana, 191 U.S. 138 (1903); Tregea _v._ Modesto
Irrigation District, 164 U.S. 179 (1896).
[148] 143 U.S. 339 (1892).
[149] Ibid. 345.
[150] Muskrat _v._ United States, 219 U.S. 346 (1911).
[151] Lampasas _v._ Bell, 180 U.S. 276, 284 (1901).
[152] Braxton County Court _v._ West Virginia, 208 U.S. 192 (1908).
[153] Ibid. 198.
[154] Smith _v._ Indiana, 191 U.S. 138, 149 (1903).
[155] Tregea _v._ Modesto Irrigation District, 164 U.S. 179 (1896).
[156] Coffman _v._ Breeze Corporations, Inc., 323 U.S. 316, 324-325
(1945), citing Tyler _v._ The Judges, 179 U.S. 405 (1900); Hendrick _v._
Maryland, 235 U.S. 610 (1915).
[157] Fleming _v._ Rhodes, 331 U.S. 100, 104 (1947). _See also_ Blackmer
_v._ United States, 284 U.S. 421, 442 (1932); Virginian R. Co. _v._
System Federation, 300 U.S. 515 (1937); Carmichael _v._ Southern Coal &
Coke Co., 301 U.S. 495, 513 (1937).
[158] 157 U.S. 429 (1895). The first injunction suit by a stockholder to
restrain a corporation from paying the tax appears to be Dodge _v._
Woolsey, 18 How. 331 (1856) which involved the validity of an Ohio tax.
The suit was entertained on the basis of English precedents. A case
similar to the Pollock Case is Brushaber _v._ Union Pacific R. Co., 240
U.S. 1 (1916). Hawes _v._ Oakland, 104 U.S. 450 (1881) is cited in the
Pollock Case, although it in fact threw out a stockholder's suit.
[159] _Cf._ Cheatham et al. _v._ United States, 92 U.S. 85 (1875); and
Snyder _v._ Marks, 109 U.S. 189 (1883).
[160] Smith _v._ Kansas City Title Co., 255 U.S. 180, 201, 202 (1921).
[161] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288 (1936).
Although the holdings of the plaintiffs amounted to only one-three
hundred and fortieth of the preferred stock, the Court ruled that the
right to maintain the suit was not affected by the smallness of the
holdings.
[162] 298 U.S. 238 (1936).
[163] Robert L. Stern, in The Commerce Clause and the National Economy,
59 Harv. L. Rev. 645, 667-668 (1948), gives the following account of the
litigation in the first bituminous coal case: On the same day that the
Bituminous Coal Act became law, the directors of the Carter Coal Company
met in New York. James Carter presented a letter saying the Coal Act was
unconstitutional and that the company should not join the Code. His
father agreed that the act was invalid, but thought the company should
not take the risk of paying the tax required of nonmembers in the event
the act should be sustained. The third director agreed with the elder
Carter, and the board passed a resolution rejecting James Carter's
proposals. This action was subsequently approved by a majority of the
voting stock held by James Carter's father and mother who outvoted him
and his wife.
[164] Massachusetts _v._ Mellon, 262 U.S. 447, 487 (1923). _See also_
Williams _v._ Riley, 280 U.S. 78 (1929).
[165] Fairchild _v._ Hughes, 258 U.S. 126 (1922).
[166] Ex parte Levitt, 302 U.S. 633 (1937). _See_, however,
Massachusetts State Grange _v._ Benton, 272 U.S. 525 (1926), where the
Supreme Court, though affirming the dismissal of a suit to enjoin a
day-light-saving statute, nonetheless, sustained the jurisdiction of the
district court to entertain the suit.
[167] Alabama Power Co. _v._ Ickes, 302 U.S. 464, 480-481 (1938).
[168] 333 U.S. 203 (1948).
[169] 342 U.S. 429 (1952). _See_ p. 763 (Amendment I).
[170] 6 Wall. 50, 64 (1868). _See also_ State of Mississippi _v._
Johnson, 4 Wall. 475 (1867).
[171] 6 Wall. at 76.
[172] 262 U.S. 447 (1923).
[173] 42 Stat. 224 (1921).
[174] 262 U.S. 447, 484-485. _See also_ New Jersey _v._ Sargent, 269
U.S. 328, 338-340 (1926), where the Court refused jurisdiction of a suit
to enjoin the federal water power act because of its effect on the
conservation of potable waters in New Jersey. A similar situation arose
in Arizona _v._ California, 283 U.S. 423, 450 (1931), where the Court
declined to take jurisdiction of an injunction suit to restrain the
Secretary of the Interior and the five States of the Colorado River
Compact from constructing Boulder Dam.
[175] Georgia _v._ Pennsylvania R. Co., 324 U.S. 439 (1945).
[176] Missouri _v._ Holland, 252 U.S. 416 (1920).
[177] Georgia _v._ Tennessee Copper Co., 206 U.S. 230 (1907).
[178] Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450, 461
(1945).
[179] Giles _v._ Harris, 189 U.S. 475, 486 (1903).
[180] 258 U.S. 158 (1922).
[181] Ibid. 162.
[182] 297 U.S. 288, 324 (1936).
[183] 274 U.S. 488 (1927).
[184] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 324
(1936).
[185] 283 U.S. 423 (1931).
[186] 330 U.S. 75 (1947).
[187] Ibid. 89-91. Justices Black and Douglas wrote separate dissents,
but each contended that the controversy was justiciable. Justice Douglas
could not agree that the men should violate the act and lose their jobs
in order to test their rights.
[188] Ex parte Steele, 162 F. 694, 701 (1908).
[189] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 13 How. 518
(1852); United States _v._ Chambers, 291 U.S. 217 (1934); Mills _v._
Green, 159 U.S. 651 (1895); United States _v._ Evans, 213 U.S. 297
(1909).
[190] Mills _v._ Green, 159 U.S. 651 (1895). This case came to the
Supreme Court on appeal from a decree of the circuit court of appeals
dissolving an injunction restraining certain registration officials from
excluding the appellant from the voting list. However, the election in
which appellant desired to vote was held prior to the appeal, and the
case thereby became moot. _See also_ St. Pierre _v._ United States, 319
U.S. 41 (1943).
[191] Ibid. 653.
[192] Keim _v._ United States, 177 U.S. 290, 293 (1900); Georgia _v._
Stanton, 6 Wall. 50, 71 (1868).
[193] 14 Pet. 497 (1840).
[194] Ibid. 516.
[195] Ibid., and Kendall _v._ United States ex rel. Stokes, 12 Pet. 524,
621 (1838); _see also_ Marbury _v._ Madison, 1 Cr. 137 (1803).
[196] Mississippi _v._ Johnson, 4 Wall. 475 (1867).
[197] Georgia _v._ Stanton, 6 Wall. 50 (1868).
[198] Ibid.
[199] 4 Wall. 475 (1867).
[200] 12 Pet. 524 (1838).
[201] 1 Cr. 137, 170 (1803).
[202] 7 How. 1 (1849).
[203] Ibid. 41.
[204] Ibid. 42-45.
[205] This classification follows in the main that of Melville Fuller
Weston, Political Questions, 38 Harv. L. Rev. 296 (1925).
[206] Field _v._ Clark, 143 U.S. 649 (1892).
[207] Coleman _v._ Miller, 307 U.S. 433 (1939).
[208] Foster _v._ Neilson, 2 Pet. 253 (1829). _See_ p. 472, supra.
[209] Commercial Trust Co. of New Jersey _v._ Miller, 262 U.S. 51
(1923).
[210] United States _v._ Anderson, 9 Wall. 56 (1870).
[211] Luther _v._ Borden, 7 How. 1 (1849); Pacific States Telephone &
Telegraph Co. _v._ Oregon, 223 U.S. 118 (1912).
[212] Luther _v._ Borden, 7 How. 1 (1849).
[213] McPherson _v._ Blacker, 146 U.S. 1 (1892), where the Court refused
to pass upon the act of the Michigan legislature in 1892 providing for
the election of presidential electors by Congressional districts.
[214] South _v._ Peters, 339 U.S. 276 (1950).
[215] Colegrove _v._ Green, 328 U.S. 549 (1946).
[216] Massachusetts _v._ Mellon, 262 U.S. 447 (1923); Georgia _v._
Stanton, 6 Wall. U.S. 50 (1868); Cherokee Nation _v._ Georgia, 5 Pet. 1
(1831).
[217] 143 U.S. 649, 670-672 (1892).
[218] Coleman _v._ Miller, 307 U.S. 433, 450 (1939).
[219] Ibid. 452-453.
[220] 328 U.S. 549 (1946).
[221] 287 U.S. 1 (1932). This case involved an unsuccessful attempt to
enjoin an election of representatives in Congress in Mississippi because
the districts formed by the legislature for that purpose were not a
contiguous and compact territory and of equal population and that the
redistricting violated article I, Sec. 4 and the Fourteenth Amendment.
The Court held that the provisions of the Reapportionment Act of 1929
did not reenact the requirements of the act of 1911 and that it was
therefore unnecessary to determine whether the questions raised were
justiciable.
[222] 285 U.S. 355 (1932). Here the Court held that the act of the
Minnesota legislature redistricting the State required the governor's
signature, and that representatives should be chosen at large until a
redistricting was passed.
[223] 328 U.S. 549, 565-566.
[224] Ibid. 566 ff.
[225] 335 U.S. 281 (1948).
[226] 335 U.S. 160 (1948).
[227] 339 U.S. 276 (1950).
[228] Charles Warren, The Supreme Court in United States History, I,
(Boston, 1922), 110-111. For the full correspondence _see_ 3
Correspondence and Public Papers of John Jay (1890-1893), (edited by
Henry Phelps Johnston), 486. According to E.F. Albertsworth, Advisory
Functions in Federal Supreme Court, 23 Georgetown L.J., 643, 644-647
(May 1935), the Court rendered an advisory opinion to President Monroe
in response to a request for legal advice on the power of the Government
to appropriate federal funds for public improvements by responding that
Congress might do so under the war and postal powers. The inhibitions of
the Court against advisory opinions do not prevent the individual
Justices from giving advice or aiding the political departments in their
private capacities. Ever since Chief Justice Jay went on a mission to
England to negotiate a treaty the members of the Court have performed
various nonjudicial functions. John Marshall served simultaneously as
Secretary of State and Chief Justice, and later Justice Robert Jackson
served as war crimes prosecutor.
[229] For example, Muskrat _v._ United States, 219 U.S. 346, 354 (1911);
Chicago & Southern Airlines _v._ Waterman Steamship Corp., 333 U.S. 103,
113 (1948); United Public Workers of America _v._ Mitchell, 330 U.S. 75,
89 (1947).
[230] Chicago & Southern Airlines _v._ Waterman Steamship Corp., 333
U.S. 103, 113-114 (1948), citing Hayburn's Case, 2 Dall. 409 (1792);
United States _v._ Ferreira, 13 How. 40 (1852); Gordon _v._ United
States, 117 U.S. 697 (1864); In re Sanborn, 148 U.S. 222 (1893);
Interstate Commerce Commission _v._ Brimson, 154 U.S. 447 (1894); La
Abra Silver Mining Co. _v._ United States, 175 U.S. 423 (1899); Muskrat
_v._ United States, 219 U.S. 346 (1911); United States _v._ Jefferson
Electric Co., 291 U.S. 386 (1934).
[231] Muskrat _v._ United States, 219 U.S. 346 (1911).
[232] United States _v._ Ferreira, 13 How. 40 (1852).
[233] United Public Workers of America _v._ Mitchell, 330 U.S. 75, 89
(1947). Here, Justice Reed, for the Court, after asserting that
constitutional courts do not render advisory opinions, declared that
"'concrete legal issues, presented in actual cases, not abstractions,'
are requisite" for the adjudication of constitutional issues, citing
Electric Bond and Share Co. _v._ Securities & Exchange Commission, 303
U.S. 419, 443 (1938); United States _v._ Appalachian Electric Power Co.,
311 U.S. 377, 423 (1940); Alabama State Federation of Labor _v._
McAdory, 325 U.S. 450, 461 (1945); and Coffman _v._ Breeze Corporations,
323 U.S. 316, 324 (1945).
[234] 13 How. 40 (1852).
[235] 117 U.S. 697 (1864).
[236] 273 U.S. 70 (1927). In Willing _v._ Chicago Auditorium
Association, 277 U.S. 274 (1928) certain lessees desired to ascertain
their rights under a lease to demolish a building after the lessors had
failed to admit such rights on the allegation that claims, fears, and
uncertainties respecting the rights of the parties greatly impaired the
value of the leasehold. Because there was no showing that the lessors
had hampered the full use of the premises or had committed or threatened
a hostile act, the Supreme Court sustained the decree of the lower Court
dismissing the bill on the ground that the plaintiff was seeking a mere
declaratory judgment. The Court admitted that the proceeding was not
moot, that there were adverse parties with substantial interests, and
that a final judgment could have been rendered, but held, nonetheless,
that the proceeding was not a case or controversy merely because
plaintiffs were thwarted by its own doubts, or by the fears of others.
Ibid. 289-290.
[237] 219 U.S. 346 (1911).
[238] 274 U.S. 123 (1927).
[239] 288 U.S. 249, 264 (1933).
[240] 300 U.S. 227, 240 (1937).
[241] 28 U.S.C.A. Sec. 2201, 2202; 48 Stat. 955.
[242] 300 U.S. 227, 240-241 (1937). The Court distinguished between a
justiciable controversy and a dispute of an abstract character,
emphasized that the controversy must be definite and concrete, touching
the legal relations of parties having adverse legal interests, and
reiterated the necessity of "a real and substantial controversy
admitting of specific relief through a decree of a conclusive character,
as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts."
[243] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 324-325
(1936).
[244] 303 U.S. 419, 443 (1938).
[245] Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450, 461
(1945), citing Nashville, C. & St. L.R. Co. _v._ Wallace, 288 U.S. 249
(1933); Aetna Life Insurance Co. _v._ Haworth, 300 U.S. 227 (1937);
Maryland Casualty Co. _v._ Pacific Co., 312 U.S. 270, 273 (1941); Great
Lakes Co. _v._ Huffman, 319 U.S. 293, 299, 300 (1943); and Coffman _v._
Breeze Corporation, 323 U.S. 316 (1945). Here, as in other cases, the
Court refused to entertain hypothetical, or contingent questions, and
the decision of constitutional issues prematurely. For this same rule
_see also_, Altvater _v._ Freeman, 319 U.S. 359, 363 (1943).
[246] 306 U.S. 1 (1939).
[247] 307 U.S. 325 (1939).
[248] 312 U.S. 270 (1941).
[249] 300 U.S. 227 (1937).
[250] Maryland Casualty Co. _v._ Pacific Coal & Oil Co., 312 U.S. 270,
273, (1941).
[251] Brillhart _v._ Excess Insurance Co., 316 U.S. 491 (1942). This was
a diversity of citizenship case which presented only local questions.
[252] Cohens _v._ Virginia, 6 Wheat. 264, 378 (1821).
[253] Stat. 73, 85-86.
[254] 1 Wheat. 304 (1816).
[255] 6 Wheat. 264 (1821).